IBRARY 


THE  UNIVERSITY 


OF  CAL  [FORNIA 


LOS  ANGELES 


SCHOOL  OF  LAW 


OFFICE    ^LlSTD    DUTIES 


NOTAEIES  PUBLIC. 


A  TREATISE 


ON   THE   LAW  RELATING  TO   THE 


OFFICE    ^JSTD    DUTIES 


NOTAKIES  PUBLIC 


Throughout  the  United  States, 


With  Forms  of  Affidavits,  Acknowledgments,  Conveyances,  Depo- 
sitions, Protests,  and  Legal  Instruments. 

•* 


BY 


JOHN  PROFFATT,  LL.B. 

Author  of  Curiosities  and  Law  of  Wills,  a  Treatise  on  Trial  by  Jury,  etc. 


SAN  FRANCISCO: 

SUMNER   WHITNEY  &   COMPANY 
NEW  YORK  :  KURD  &  HOUGHTON. 


1877. 


Copyright  1877, 
BY  JOHN  PROFFATT. 


T 

P94Z8* 

IST? 


RIVERSIDE,    CAMBRIDGE: 
PRINTED  BY  H.   O.    HOUGHTON  AND   COMPANY. 


PREFACE. 


\ 

If  I  would  justify  the  existence  of  this  book,  I  could  point  to 
the  fact  that  there  is  no  other  covering  the  same  ground  or  supply- 
ing the  same  information.  While  it  may  be  an  advantage  to  an 
author,  as  far  as  novelty  is  concerned,  to  be  the  first  to  treat  of  a 
certain  subject,  it  devolves  upon  him,  however,  a  weightier  degree 
of  care  and  responsibility  in  preparing,  arranging,  and  developing 
in  systematic  order  the  topics  of  his  treatise. 

Recognizing  this  duty  in  writing  upon  a  new  subject,  the 
author  has  given  the  utmost  attention  to  the  systematic  arrange- 
ment and  connection  of  the  various  topics  composing  this  treatise, 
and  has  been  particularly  careful  to  make  the  work  easy  of  refer- 
ence and  convenient  for  examination.  But  a  book  can  hardly 
claim  an  excuse  for  its  existence  simply  on  the  ground  of  novelty, 
or  as  being  the  pioneer  in  a  new  field.  The  author  therefore  does 
not  claim  recognition  simply  because  it  is  the  first  on  this  general 
subject,  but  prefers  to  base  its  claims  to  notice  on  the  ground  of 
its  practical  utility,  and  its  adaptation  to  the  wants  of  those  for 
whom  it  Avas  written. 

It  might  appear,  at  first  sight,  impossible  to  treat  of  the  duties 
and  powers  of  Notaries  in  a  general  work  adapted  to  various  States ; 
but  on  examination  and  comparison  of  the  statutes,  it  will  be  found 
that  their  duties  and  powers  are  more  uniform  in  our  several  States 
than  many  would  suspect.  Thus  a  general  treatise  became  prac- 
ticable, and  the  author  found  it  possible  to  classify  and  arrange  his 
subject  from  a  general  standpoint.  Where,  however,  statutes  have 
abridged  or  enlarged  the  powers  of  Notaries  in  any  State,  the 
author  has  not  failed  to  draw  attention  thereto,  giving  reference  to 
such  statutes. 

The  subjects  embraced  in  this  work  comprise  fully  and  specific- 

[iii] 


735704 


iv  PREFACE. 

ally  whatever  pertains  to  the  office  of  a  Notary  throughout  the 
United  States.  The  general  duties  of  Notaries  in  this  country  are 
to  take  acknowledgment  of  deeds  and  other  written  instru- 
ments, to  take  affidavits  and  depositions,  and  to  make  protest  of 
negotiable  paper.  Where  Notai-ies  are  not  permitted  to  exercise 
all  of  these,  or  where  they  are  intrusted  with  additional  powers, 
the  fact  has  been  duly  noticed. 

The  author  has  throughout  relied  upon  authority,  supporting 
his  statements  by  citations  of  cases  numbering  at  least  one  thous- 
and, so  that  the  work  may  not  only  be  a  manual,  but  a  reliable 
reference  to  all  who  have  occasion  to  investigate  any  of  the  several 
subjects  embraced  in  it. 

The  subject  of  Acknowledgment  of  Deeds  has  been  carefully 
treated,  and  the  various  decisions  in  reference  thereto  examined 
and  digested ;  and  this  chapter  of  the  work,  it  is  hoped,  may  prove 
not  only  advantageous  to  the  practical  conveyancer,  but  useful  to 
the  lawyer,  as  its  propositions  are  fully  supported  by  reference  to 
well-considered  cases.  In  the  forms,  there  are  given  the  style  of 
acknowledgment  for  each  State  and  Territory  of. the  Union;  and 
forms  for  the  private  acknowledgment  of  married  women  are 
iven  under  the  States  where  such  are  required. 

The  chapter  on  Negotiable  Paper  has  received  the  author's  most 
careful  attention,  and  it  has  been  his  aim  to  make  it  complete, 
practical,  and  useful  to  Notaries,  to  whom  are  confided  the  respon- 
sible duties  of  protesting  "negotiable  paper.  He  has,  at  the  same 
time,  endeavored  to  extend  its  utility  by  citations  of  cases,  so  that 
it  may  be  of  use  to  the  practicing  lawyer,  and  especially  to  bank- 
ers, who  will  readily  find  therein  information  which  they  will  have 
occasion  every  day  to  seek. 

The  chapter  on  Notarial  Acts  as  Evidence  the  author  believes 
will  be  found  of  great  advantage,  not  only  to  notaries  but  to  the 
legal  profession.  It  is  the  first  time  that  the  cases  on  this  subject 
have  been  brought  together,  classified,  and  digested.  The  import- 
ance of  this  subject  demanded  of  the  author  the  most  careful 
attention  and  closest  examination.  It  has  therefore  been  his  en- 
deavor to  make  it  complete,  reliable,  and  practical. 


PREFACE.  V 

The  forms  will,  perhaps,  be  the  most  useful  and  practical  part  of 
the  work.  They  have  been  carefully  selected  and  compared,  and 
it  is  hoped  will  be  found  useful  and  reliable.  Over  two  hundred  of 
these  forms  are  given,  comprising  forms  of  acknowledgment,  dep- 
ositions, protests,  ship  protests,  and  forms  of  legal  instruments  in 
general  use. 

It  is  believed,  from  the  large  number  of  Notaries  throughout  the 
United  States,  and  the  responsible  duties  they  are  called  upon  to 
discharge,  that  this  work  will  supply  them  with  that  information 
which  will  enable  them  to  discharge  their  duties  safely  to  them- 
selves and  efficiently  to  the  public.  The  author  now  commits  the 
work  to  their  favor  and  patronage,  and  feels  assured  that,  though 
it  be  the  first  attempt  to  compile  a  general  treatise  on  the  subject 
adapted  to  all  sections  of  the  country,  it  will  not  prove  imperfect 
or  unreliable,  and,  while  not  infallible,  will  be  found  free  from  any 
grave  errors. 

J.  P. 

SAST  FRANCISCO,  March,  1877. 


TABLE  OF  CONTENTS, 


CHAPTER  I. 

HISTORY  OF  THE  OFFICE. 

§  1.  Origin  remote. 

§  2.  Under  Roman  law. 

§  3.  Function  of  the  tabelliones. 

§  4.  Their  acts  not  accorded  full  public  authenticity. 

§  5.  "When  acts  obtained  public  recognition. 

§  6.  Notaries  in  England. 

§  7.  Mentioned  in  reign  of  Henry  V. 

§  8.  Acts  of  a  solemn  nature  executed  before  notaries. 

§  9.  Effect  of  Reformation  as  to  office  and  duties. 


CHAPTER  H. 

APPOINTMENT  OF  NOTARIES 

§  10.  Executive  generally  appoints. 

§  11.  In  England,  appointed  by  the  Court  of  Faculties. 

§  12.  Appointment  in  the  United  States. 

§  13.  Qualifications  for  appointment. 

§  14.  Period  for  "which  appointed. 

§  15.  Notaries  in  France. 


CHAPTER  HI. 

OFFICE  AND  DUTIES. 

§  16.  In  general. 

§  17.  The  States  in  which  notaries  do  not  take  acknowledgments. 

§  18.  In  Louisiana. 

§  19.  May  act  as  justice  of  the  peace  in  some  States. 

§  20.  May  take  depositions. 

§  21.  The  power  to  take  affidavits. 

§  22.  Jurisdiction. 

§  23.  Powers  under  Federal  laws. 

§  24.  Under  the  bankrupt  law. 


[Vii] 


viii  TABLE   OP   CONTENTS. 

§  25.  Affidavits  required  by  mining  laws. 

§  26.  May  take  depositions  in  certain  cases. 

§  27.  Duty  as  to  keeping  records. 

§  28.  Eequirements  as  to  seal. 


CHAPTER  IV. 

ACKNOWLEDGMENT   OP  DEEDS. 

§  29.  The  effect  of  acknowledgment. 

§  30.  A  literal  compliance  is  not  necessary. 

§  31.  Essential  of  certificate. 

§  32.  Identity  of  the  party. 

§  33.  Identity,  how  proved. 

§  34.  As  to  the  officer  taking  the  acknowledgment. 

§  35.  Where  the  officer  is  a  party  in  interest. 

§  36.  A  deputy  can  take  the  acknowledgment. 

§  37.  Place  where  acknowledgment  is  made. 

§  38.  The  necessity  of  a  seal. 

§  39.  Certificate  of  probate  of  deeds. 

ACKNOWLEDGMENTS    BY    MARRIED -'WOMEN. 

§  40.  Theory  of  the  law  in  respect  to. 

§  41.  Requisites  of  the  certificates. 

§  42.  As  to  the  exact  compliance  with  these  requirements. 

§  43.  A  private  examination. 

§  44.  The  wife  must  be  made  acquainted  with  contents. 

§  45.  The  certificate  must  state  a  voluntary  free  act. 

§  46.  That  she  does  not  wish  to  retract  her  act. 

§  47.  Effect  of  the  certificate  against  the  wife. 

§  48.  Liability  of  notary  for  invalid  acknowledgment. 

§  49.  Statutory  provisions  in  reference  to  acknowledgments. 


CHAPTER  V. 

AFFIDAVITS. 

§.  60.  Authority  to  take. 

§  51.  Definition  of  affidavit. 

§  62.  The  venue. 

§  53.  Signature  by  affiant. 

§  64.  Oath  and  jurat. 

§  55.  Officer  qualified  to  take. 

§  66.  As  to  the  use  of  a  seal. 


TABLE   OF    CONTENTS. 

CHAPTER  VL 

DEPOSITIONS. 

§  57.  Notaries  generally  take  depositions. 

§  58.  As  to  the  caption. 

§  59.  Mistakes  in  names  of  parties  in  caption. 

§  60.  Should  state  at  -whose  request  deposition  taken. 

§  61.  The  certificate  generally. 

§  62.  Immaterial  omissions  in  the  certificate. 

§  63.  As  to  swearing  the  witness. 

§  64.  The  identity  of  the  witness. 

§  65.  Writing  out  the  deposition. 

§  66.  The  manner  of  writing  out. 

§  67.  Language  of  the  deposition. 

§  68.  Presence  of  parties. 

§  69.  Place  where  taken. 

§  70.  Powers  of  notaries  in  taking  depositions. 

§  71.  Adjournment. 

§  72.  The  deposition  should  be  subscribed. 

§  73.  Certification  of  official  character  of  officer. 

§  74.  Certain  States  require  a  certification. 

§  75.  Return  of  the  deposition. 

CHAPTER   VH. 

DUTIES  RELATIVE    TO    NEGOTIABLE -PAPER. 
§    76.    Importance  of  duties  in  this  respect. 

I.      PRESENTMENT  FOB  ACCEPTMEOT. 

§  77.  What  should  be  presented  for  acceptance. 

§  78.  By  and  of  whom  presentment  made. 

§  79.  Place  of  presentment. 

§  80.  Mode  of  presentment. 

§  81.  Time  within  which  presentment  made. 

§  82.  Excuses  for  delay  in  presentment. 

§  83.  As  regards  the  time  of  day. 

§  84.  Delay  by  agent  more  strictly  regarded. 

§  85.  Acceptance,  how  given. 

§  86.  Statutory  provisions  regarding  mode. 

§  87.  Time  given  drawee  for  acceptance. 

§  88.  A  partial  or  conditional  acceptance. 

§  89.  Acceptance  supra  protest. 

H.      PRESENTMENT    FOB    PAYMENT. 

§  90.  By  whom  demand  of  payment  made. 

§  91.  Demand  by  notary  or  clerk. 

§  92.  To  whom  presentment  for  payment  made. 

§  93.  In  case  acceptor  or  maker  be  dead. 


TABLE   OF    CONTEXTS. 

§    94.  In  case  of  partners. 

§    95.  When  the  acceptor  or  maker  cannot  be  found. 

§    96.  Time  of  making  presentment  for  payment. 

§    97.  As  to  the  time  of  day  for  demand  of  payment. 

§    98.  Computation  of  time. 

§    99.  Rule  regarding  Sundays  or  holidays. 

§  100.  Place  of  presentment  for  payment. 

§  101.  Mode  of  demanding  payment. 

§  102.  When  paper  payable  at  bank. 

§  103.  What  will  excuse  failure  to  demand  payment. 

'     in.    PKOTEST. 

§  104.  Meaning  and  effect  of. 

§  105.  What  instruments  should  be  protested. 

§  106.  Foreign  promissory  notes. 

§  107.  By  whom  the  protest  should  be  made. 

§  108.  Place  of  protest. 

§  109.  Formal  preparation  of  protest. 

§  110.  Contents  and  particulars  of  protest. 

§  111.  Date  of  protest. 

§  112.  As  to  the  place  of  presentment. 

§  113.  A  presentment  and  demand  must  appear. 

§  114.  Other  facts  appearing  by  the  certificate. 

§  115.  When  protest  unnecessary. 

IV.      NOTICE  OF  PROTEST. 

§  116.  Who  must  have  notice. 

§  117.  Manner  of  giving  notice. 

§  118.  Form  of  the  notice. 

§  119.  As  to  the  description  of  the  instrument. 

§  120.  The  fact  of  dishonor. 

§  121.  As  to  notice  of  demand  for  payment  from  party. 

§  122.  The  party  who  gives  notice. 

§  123.  Notice  by  an  agent. 

§  124.  The  proper  person  to  receive  notice. 

§  125.  Notice  when  the  parties  reside  in  the  same  place. 

§  126.  Who  may  be  regarded  as  living  in  the  same  place. 

§  127.  When  notice»is  personally  served. 

§  128.  Notice — parties  residing  in  different  places. 

§  129.  When  parties  reside  temporarily  in  a  place. 

§  130.  The  place  where  notice  should  be  sent. 

§  131.  Time  within  which  notice  should  be  given. 

§  132.  What  hour  next  day  is  reasonable. 

§  133.  When  holidays  intervene. 

§  134.  A  holder  has  a  day  to  give  notice  to  predecessor. 

§  135.  Liability  of  notary. 


CHAPTER  VIII. 

NOTARIAL  ACTS  AS  EVIDENCE. 

§  136.    Judicial  notice  taken  of  notary's  seal. 

§  137.    How  far  notarial  acts  were  evidence  under  common  law. 


TABLE    OF    CONTEXTS,  XI 

§  138.  A  certificate  of  protest  under  the  common  law. 

§  139.  Statutory  provisions  in  regard  to  certificate. 

§  140.  "\Vhat  facts  the  certificate  is  evidence  of. 

§  141.  Character  of  certificate  as  evidence. 

§  142.  Rebutting  the  certificate. 

§  143.  Notarial  certificate,  when  made  out  of  the  State. 

§  144.  Sufficiency  of  notarial  certificate. 

§  145.  Sufficiency  as  to  residence. 

§  146.  As  to  the  manner  of  giving  notice. 

§  147.  When  notice  is  sent  by  mail. 

§  148.  The  certificate  must  show  notice  of  dishonor. 

§  149.  Need  not  state  at  whose  request  notice  was  given. 

§  150.  Date  of  certificate. 

§  151.  Certificate  should  be  under  notarial  seal. 

§  152.  Presumptions  in  favor  of  certificate. 

§  153.  Parol  evidence  affecting  certificate. 

§  154.  Records  of  a  deceased  notary  as  evidence. 

CERTIFICATES  OF  ACKNOWLEDGMEJsT. 

§  155.  Character  of  evidence. 

§  156.  "When  certificate  may  be  impeached. 

§  157.  Can  be  impeached  by  fraud  or  collusion. 


CHAPTER  IX. 

COMMISSIONERS -OF  DEEDS. 

§  158.  Appointment. 

§  159.  Qualifications. 

§  160.  Number  appointed. 

§  161.  Period  for  which  appointed. 

§  102.  Powers. 

§  163.  Conditions  to  be  complied  with  before  exercising  duties. 

§  164.  Fee  paid  for  commission. 

§  165.  Requirements  as  to  seal. 

§  166.  Authentication  of  acts. 

§  167.  Fees. 

§  168.  Appointments  published. 


FORMS. 


Acknowledgments,       -  -                     Nos.   1-  95 

Affidavits,      -  -        "    96-110 

Depositions,        -  "  111-146 

Protest  and  Notice,  -         "  147-159 

Deeds,      -  "  160-169 

Mortgagers,  -        "  170-175 

Assignment  of  Mortgage.  -                                                                      "  176-178 

Satisfaction  of  Mortgage,  -        "  179-182 

Chattel  Mortgage,          -  ...                      .                         «  184-186 


xji  TABLE    OF    CONTENTS. 

Bill  of  Sale,       -  N°f«  J£J» 

Powers  of  Attorney,  -                                                                            „    «*»£ 

Agreement,       -  "901 

Bond>                       "  "    202-006 
Assignments,    - 


Notary's  Bond,  ------- 

Table  of  Cases,  - 

Index,          - 

Table  of  Fees,  *    ""  - 


CHAPTER  I. 

HISTORY  OF  THE  OFFICE. 

§  1.  Origin  remote. 

§  2.  Under  Roman  law. 

§  3.  Functions  of  the  Tabelliones. 

§  4.  Their  acts  not  accorded  full  public  authenticity. 

§  5.  "When  acts  obtained  public  recognition. 

§  6.  Notaries  in  England. 

§  7.  Mentioned  in  reign  of  Henry  V. 

§  8.  Acts  of  a  solemn  nature  executed  before  notaries. 

§  9.  Effect  of  Reformation  as  to  office  and  duties 

§  1.  Origin  remote. — Notaries  as  professional  officers  seem 
to  have  existed  from  a  period  of  remote  antiquity ;  though  their 
office  and  duties  were  not  similar  to  those  of  the  present  day. 
It  is  easy  to  conceive  that,  at  a  time  when  but  few  were  capable 
of  putting  their  agreements  in  writing,  a  demand  should  have 
existed  for  a  class  of  officers  who  might  be  able  to  embody  and 
attest  in  a  written  instrument  the  terms  of  a  contract. 

It  is  for  this  reason  we  so  frequently  meet  with  a  class  of  of- 
ficers of  this  kind  in  all  historical  writings.  Under  various 
names  we  find  them  described  in  ancient  history ;  but  the  gen- 
eric word  tScribce  seems  to  be  applicable  to  all  such  persons.1 

A  French  legal  writer  thus  speaks  of  such  public  officers : 
"  Ils  furent  nomme's  Scribce,  titre  commun  &  tous  ceux  qui 
savent  e'crire  ;  Cursores,  ou  Logographi,  parcequ'ils  ecrivaient 
aussi  vite  que  la  parole  ;  JVbtam,  parcequ'ils  e"crivaient  par  notes ; 
Tabularii,  ou  Tabelliones,  parcequ'ils  ecrivaient  sur  des  tablettes ; 
ArgentariifiiOUT  designer  ceux  qui  ne  recevaient  les  contrats  que 
pour  quelques  negociations  d'argent,  telles  que  pret,  depQt."  2 

§  2.  Under  Roman  law. — A  writer  on  Roman  law  asserts 
that  the  word  Scriba  was  applied  in  ancient  times  to  the  clerk 

1  A  notary  was  anciently  a  scribe  that  only  took  notes  or  minutes,  and  made 
short  draughts  of  writings,  and  other  instruments,  both  public  and  private. 
Burn,  Eccles.  Law.  Vol.  3,  p.  1. 

-  MerluvRepertoire  de  Juris.  Vol.  21,  p.  317. 

NOTARIES — 1.  [  1  ] 


2  HISTORY   OF   THE   OFFICE.  §  3 

of  the  Court,  in  contradistinction  to  the  Exceptor,  who  was  cm 
ployed  by  private  persons.  He  says  further  that  "  the  terms 
Notarius  and  Actuarius l  designated  a  peculiar  sort  of  employee  ; 
but  in  the  fourth  and  fifth  centuries  these  terms  changed,  and 
the  word  Exceptor  applied  to  every  chancery,  Notarius  and 
Tribunus  being  reserved  for  the  imperial  chancery  alone — hence 
Tabellio  came  to  signify  what  Notarius  originally  implied, 
namely,  such  persons  as,  prepared  contracts,  wills,  and  the  like, 
without  a  public  sanction,  in  the  beginning  of  the  sixteenth 
century."  2 

It  is  under  the  term  tdbellio  we  find  the  officer  described  in 
Roman  law  who  most  nearly  corresponds  to  our  modern  notary.3 
These  tabelliones  assumed  a  position  of  great  importance  in 
Roman  law  as  public  officers. 

§  3.  Functions  of  the  tabelliones. — At  first,  these  officers 
were  occupied  in  a  professional  capacity,  and  had  only  a  pub- 
lic character  in  so  far  as  they  offered  their  services  to  the  public 
at  large  in  drawing  up  instruments  of  agreement,  legal  docu- 
ments, and  papers  to  be  presented  to  the  Courts  of  Law  or  other 
authorities  of  State.  They  established  themselves  in  the  most 
frequented  and  public  resorts,  where  the  public  might  more 
easily  obtain  their  services  in  this  capacity ;  and  even  at  the 
present  day  such  officers  are  found  in  Italian  cities,  offering 
their  services  in  a  similar  capacity. 

In  Rome,  their  offices  were  found  around  the  Agora  and 
Forum,  and  hence  the  name  under  which  they  are  sometimes 
designated,  as  tabelliones  forenses* 

Their  number  and  importance  increased  in  such  a  degree  that 
the  State  began  to  take  a  recognition  of  them,  and  to  place  them 
under  a  certain  sort  of  supervision  and  regulation.  They 

1  n  existait  encore  une  autre  espece  d'officiers  appel'.'s  Actuarii.  Chaque  gou- 
verneur  de  province 'a  vait  aupres  de  lui  un  de  ces  'derniers  officiers  pour  recevoii 
en  registrer  et  sceller  les  acts,  tels  quo  les  ('mancipations,  adoptions,  manumis- 
sions, et  testamens."  Merlin,  Repertoire  de  Juris.  Vol.  21,  p.  318. 

a  Colquhoun,  Roman  Law,  Sec.  86. 

8  They  were  called  tabellio,  probably  from  the  tabula,  or  tables  or  plates  cov- 
ered with  wax,  used  by  them  instead  of  paper,  See  Corpus  Juris  Civilis,  No- 
vell. 23  ;  Du  Cange,  Glossarium  ad  Scriptores  mediae  et  infimse  Latin  tatus,  title 
Notarii  and  Tabellio. 

4  Colquhoun,  Roman  Law,  Sec.  2349,  Novell.  44. 


§  4  HISTORY    OF   THE    OFFICE.  3 

formed  themselves  into  a  sort  of  guild  or  company,  under  a  pre- 
siding officer  called  a  primicerius.  And  it  appears'  from  a 
"  Constitution  "  of  Diocletian  that  a  tariff  of  fees  was  established 
for  them. 

§  4.  Their  acts  were  not  accorded  full  public  authen- 
ticity in  the  Roman  law ;  it  was  still  necessary  that  witnesses 
should  be  adduced  to  fully  authenticate  their  notarial  acts.  But 
these  acts  commanded  a  certain  degree  of  weight  and  public 
authenticity.  There  were  three  species  of  instruments  to  which 
the  civil  law  attributed  different  degrees  of  credit.  There 
were  those  specially  designated  public  instruments,  such  as 
were  deposited  in  the  public  archives  set  apart  for  that  purpose — 
Quce  inpublico  deponuntur  in  arckio  aut  Grammatophylacio  ;l 
and  these  instruments  proved  themselves — no  witnesses  were 
necessary  to  establish  them  as  evidence.  The  writings  which 
were  accorded  the  next  degree  of  credit,  as  evidence,  were 
those  taken  by  a  notary  in  the  presence  of  two  witnesses.  They 
were  called  instrumenta,  or  documenta  publice  celebrata,  publice 
confecta,  or  scripturce  forenses,  because  they  were  taken  by 
notaries  established  about  the  Forum.  The  signature  of  the 
notary  did  not  confer  on  them  authority,  and  they  were  not 
given  the  credit  of  public  instruments,  for  they  did  not  prove 
themselves.  Festimonium  publicum  non  habebant.  If  the 
writing  of  the  party  were  objected  to,  the  notary  must  be 
called,  and  in  case  of  his  death,  the  attesting  witnesses.2 

Such  writings  as  were  made  without  the  intervention  of  a 
notary — quce  non  habebant  supplementum  Tabellionis — were 
required  to  be  signed  by  the  parties  in  the  presence  of  three 
witnesses  of  credibility,  and  who  were  acquainted  with  the 
parties.3 

1  Dig.  Lib.  48,  Tit.  19,  1,  9,  Sec.  6. 

2  Burge,  Colonial  Law,  Vol.  2,  p.  700. 

The  rule  of  the  canon  law  was  that  one  notary  was  equivalent  to  the  testimony 
of  two  witnesses.  Burn,  Eccles.  Law,  Vol.  3,  p.  2. 

3  In  the  Civil  Law,  by  the  73d  Novel  of  Justinian,  the  mode  of  authenticating 
instruments  is  carefully  pointed  out,  and  the  functions  of  the  tabelliones  in  this 
respect  provided  for. 

In  Cap.  2,  it  is  provided :  Sed  et  si  quis  aut  mutui  instrumentum,  aut  alterius 
cujuspiam  faciat,  et  noluerit  hoc  in  publico  confeteri,  quod  et  in  deposito,  de- 
finivimus,  non  ex  ipso  videatur  credibile  quod  scributur  super  mutuo  documen- 


4  HISTORY    OF  THE    OFFICE.  §  5 

§  5.  When  acts  obtained  public  recognition. — Under 
the  Roman  law,  it  had  been  the  custom  for  a  judge,  or  public 
functionary,  to  have  close  by  him  a  sort  of  secretary,  generally 
denominated  in  later  times  a  cancellarius,  whence  our  word 
"  chancellor  "  is  derived.  Such  officers  were  also  attached  to  the 
bishops,  after  Christianity  was  established  in  the  empire.  These 
officers  discharged  important  functions  in  drawing  up  agree- 
ments, documents,  and '  especially  wills,  which  were  very  fre- 
quently drawn  up  before  the  bishops  by  their  notaries,  who, 
for  a  long  period,  on  the  continent,  (as  well  as  formerly  in  Scot- 
hind)  had  committed  to  them,  as  a  peculiar  and  responsible  part 
of  their  functions,  the  attestation  of  wills.1  But,  after  the  de- 
cadence of  the  secular  jurisdiction  of  the  bishops,  and  the  limit- 
ation of  their  powers,  the  notary  began  to  do  on  his  own  behalf 
what  he  formerly  did  as  an  attached  ministerial  officer;  and  be- 
fore him  were  executed  and  attested  the  most  formal  and  solemn 
documents,  such  as  wills,  bonds,  and  important  contracts. 

It  was  in  the  time  of  Charlemagne  that  the  acts  of  notaries 
were  first  invested  with  public  authority.  In  one  of  his  capit- 

tum,  nisi  etiam  testium  habeat  praesentium  fide  dignorum  non  minus  trium; 
ut  sine  veniat  et  proprius  subscriptionibus  attestentur :  sive  alii  quidam  testifi- 
ccntur,  quid  prcescntibus  cis  confectum  cstdocumentum;  fidem  causa  ex  utroque 
percipiat,  etiam  literatum  examinatione  penitus  non  repulsa,  sed  sola  non 
sufnciente  augmento  autem  testium  confinnanda. 

In  Cap.  5,  it  is  pointed  out  how  the  tdbelliones  shall  cause  instruments  to  be 
carefully  drawn  up:  Sed  et  si  instrumenta  publice  confecta  suit:  licet  tabelli- 
onum  habeant  supplementum,  adjiciatur  et  eis  antequam  compleantur  (sicut 
dictum  est)  testuim  ex  scripto  prresentia. 

1  There  is  a  remarkable  instance  given,  in  Stair's  Decisions  of  the  Scotch 
Court  of  Sessions,  of  the  punishment  of  two  notaries  for  improperly  attesting  a 
will.  The  case  is  reported  as  Stuart  contra  Smith,  Nov.  20th,  1G80,  at  page  804, 
in  the  following  quaint  style :  "  It  was  further  alledged  that  the  defunct  made  a 
testament,  and  named  Wardlaw  executor  and  universal  legatur  to  her,  upon  his 
liaviug  maintained  her  many  years.  It  being  answered  that  the  testament 
being  subscribed  by  two  nottara  is  false,  the  defunct  never  having  given  com- 
mand to  subscribe  it,  nor  heard  it  read,  but  that  a  blank  paper  was  subscribed  by 
the  nottars,  and  was  filled  up,  ex  post  facto,  after  the  defunct' s  death,  which  be  ing 
found  relevant,  and  the  nottars  and  witnesses  being  examined,  they  did  depose 
that  the  nottars  subscribed  a  blank  paper,  and  that  the  defunct  was  not  sensible, 
nor  able  to  speak,  but  that  her  hand  was  lifted  by  another  to  touch  the  pen,  and 
that  the  testament  was  not  filled  up  till  some  days  after  her  death.  The  Lords 
found,  not  only  the  testament  null,  as  being  blank,  but  false  and  without  war- 
rand,  and  deposed  both  the  nottars,  and  gave  warrand  to  the  sheriff  to  send  both 
their  persons  to  Edinburgh,  to  be  set  upon  the  cock-stool,  with  a  paper  upon  their 
brows." 


§  6  HISTORY    OF   THE    OFFICE.  5 

ularics,  in  the  year  803,  he  desired  his  deputies  to  nominate 
notaries  in  every  place ;  and  in  another,  in  the  ye&r  805,  he 
obliged  every  bishop,  abbot,  and  count  to  have  each  a  notary.1  At 
a  later  time,  it  became  the  sole  prerogative  of  kings  to  appoint 
notaries ;  but,  by  degrees,  the  Pope  of  Home  assumed  the  same 
right.2 

§  6.  Notaries  in  England  were  known  to  have  exercised 
their  powers  before  the  Norman  Conquest.  During  the  reign 
of  Edward  the  Confessor,  whilst  Reinbald  was  chancellor,  some 
manors  and  lands  were  granted  by  the  king  to  the  Abbot  of 
Westminster,  by  a  charter,  the  concluding  clause  of  which 
shows  it  to  have  been  written  and  attested  by  a  notary  named 
Swardius :  "  Notarius,  ad  vicem  Eeinbaldi  regiaB  dignitatus 
cancellarii,  hanc  chartam  scripsi  et  subscripsi,"  etc.3 

Notaries,  as  public  officers,  are  alluded  to  in  the  petition,  in 
Norman  French,  of  the  House  of  Commons  of  the  twenty-first 
year  of  the  reign  of  Edward  III,  thus :  "  Et  sur  ce  furent  as- 
signcz  per  my  Engleterre  certeines  Gentz  de  prendre  Procura- 
tours  des  Cardinalx,  and  d'autres  Aliens,  Subdelegatz  and  lour 
Notairs."  4 

We  find  notaries  named  in  the  Act  of  Parliament,  commonly 
known  as  the  Statute  of  Provisors  of  the  twenty-seventh  Ed- 
ward III,  St.  1,  c.  1,  passed  in  1353,  and  in  the  Act  of  the  six- 
teenth Richard  II,  Chap.  5,  Sec.  2,  in  1392,  commonly  called  the 
Statute  of  Prasmunire.  The  Statutes  of  Prasmunire  had  for 
their  object  the  abolition  of  the  papal  power  in  England,  so  far 
as  it  pretended  to  appoint  to  ecclesiastical  benefices  without  the 
king's  consent.5  The  statute  declared  certain  pains  and  penal- 

1  "Ce  fut  Charlemagne  qui,  le  premier,  investit  les  notaires  du  pouvoir  d'im- 
primer  u  leur  actes  le  caractere  do  1'autorit'  publique.    II  nomine  dans  ses  cap- 
itulaires  judices  chartularii.    Dans  un  de  ces  capitulaires  do  1'an  803,  il  veut  que 
ses  envoy/s  nomment  dans  chaque  lieu  des  notaires;  dans  un  autre  de  1'an  805, 
il  oblige  les  evcques,  les  abbes,  les  comtes,  d'avoir  chacun  un  notairfi."    Merlin, 
Repertoire  de  Juris.  Vol.  21,  p.  317. 

2  The  Pope  assumed  the  right  to  appoint  to  all  faculties;  and  consequently,  ag 
a  notary  was  included  in  such,  he  assumed  the  right  of  appointment.    In  En- 
gland, he  was  deprived  of  this  power  by  a  statute  in  the  reign  of  Henry  VIII. 
See  Edes  v.  Bishop  of  Oxford,  Vaugh.  23. 

8  4  Institutes,  c.  8,  p.  78. 

4  Rot.  Parl.  21  Edw.  HI,  p.  172. 

5  See  Barrington  on  Statutes,  p.  279. 


6  HISTORY   OF   THE   OFFICE.  §§  7-8 

ties  against  parties  who  should  be  concerned  in  any  proceeding 
of  this  kind,  in  defiance  of  the  king's  authority,  and  declared 
that  all  "  they,  their  notaries,  procurators,  abettors,  f  autors,  and 
counsellors  "  should  suffer  certain  penalties. 

§  7.  Mentioned  in  reign  of  Henry  V. — At  a  very  early 
period  in  England,  notaries  were  employed  to  attest  or  authenti- 
cate instruments  of  more  than  ordinary  importance  or  solemnity  ; 
an  instance  of  this  is  given  in  the  ninth  year  of  the  reign  of 
Henry  V,  when  two  notaries  are  mentioned  in  the  Parliament- 
ary Rolls  of  that  year  as  attesting  an  instrument  of  importance 
relating  to  the  affairs  of  Lucie,  Countess  of  Kent :  "  Ensealee 
desoutz  le  seal  d'annes  du  dite  Countesse  and  desoutz  le  tesmoig- 
nance  de  deux  notaries  mettantz  lour  signes  a  mesme  1'escript 
de  le  quele  les  paroles  cy  ensuent,  etc." 1 

In  the  reign  of  Henry  VI,  in  the  year  1430,  there  occurred 
a  trial  by  battle,  or  single  combat,  one  of  the  former  barbarous 
modes  of  trial,  before  the  king,  in  which  one  of  the  parties  was 
John  Upton,  a  notary  of  Feversham.  The  following  is  taken 
from  an  account,  by  Stow,  of  the  combat : 

"  The  f oure  and  twentieth  of  January,  a  battel  was  done  in 
Smithfield,  within  the  lists,  before  the  King,  betweene  two  men 
of  Feversham,  in  Kent,  John  Upton,  notary,  appelant,  and  John 
Downe,  gentleman,  defendant;  John  Upton  put  upon  John 
Downe,  that  he  and  his  compiers  should  imagine  the  King's 
death,  the  day  of  his  coronation :  when  they  had  long  fought 
the  King  tooke  up  the  matter  and  forgave  both  parties." '' 

§  8.   Acts  of  a  solemn  nature  executed  before  notaries. 

— Apart  from  the  ordinary  duties  of  notaries,  as  attesting  the 
execution  of  wills,  contracts,  bonds,  and  the  like,  there  were 
sometimes  executed  before  them  acts  of  a  high  and  solemn 
nature,  in  order  to  give  them  more  of  an  impressive  and  authen- 
tic character.  Thus  it  happened  that  they  were  called  upon  to 
officiate  in  drawing  up  and  authenticating  treaties.  In  the 
enumeration  of  the  army  of  King  Edward  IV,  designed  for 
the  invasion  of  France  in  1475,  we  find  there  mentioned  a 
doctor  of  laws  and  public  notaries  engaged  to  accompany  the 

*4  Rot.  Parl.  9  Henry  V,  p.  144.  a  Stow's  Annals,  p.  371 


§  9  HISTORY    OF   THE   OFFICE.  7 

troops,  and  the  remuneration  paid  them  is  also  stated.  "  Ma- 
gistro  Johanni  Coke,  Doctori  Legum  pro  vadiis  suis  'ad  2s.  pei 
diem,  et  pro  vadies  cujusdam  Notarii  Publici  ad  12d.  per  diem."  3 

That  notaries  were  employed  in  foreign  countries  to  protest 
or  record  dissents  in  respect  of  public  or  state  measures,  is 
proved  by  the  well-known  "historical  fact  of  Francis  I,  of  France. 
having  made  a  protest  in  1526,  before  notaries  at  Madrid,  de- 
claring that  his  consent  to  the  treaty  of  Madrid  should  be 
considered  as  an  involuntary  deed,  and  deemed  null  and  void,  as 
having  been  obtained  from  him  during  his  captivity,  consequent 
upon  the  battle  of  Pavia.2 

In  the  "  Merchant  of  Venice  "  we  see  how  well  established 
the  custom  was  in  Shakespeare's  time  to  execute  instruments  oi 
a  solemn  nature  before  a  notary. 

Shylock. —  This  kindness  will  I  show: 

Go  with  me  to  a  notary,  seal  me  there  your  single  bond. 

***** 

Antonio. — Yes,  Shylock,  I  will  seal  unto  this  bond. 
Shylock. — Then  meet  me  forthwith  at  the  notary's.3 

And  Massinger,  writing  in  1633,  thus  alludes  in  a  satirical 
way  to  the  duty  and  power  of  a  notary : 

"  Besides,  I  know  thou  art 
A  public  notary,  and  such  stand  in  law 
For  a  dozen  witnesses  ;  the  deed  being  drawn,  too, 
By  thee,  my  careful  Marrall,  and  delivered 
"When  thou  wert  present,  will  make  good  my  title."  * 

§  9.   Effect  of  Reformation  as  to  office  and  duties. — In 

England,  no  material  change  was  produced  in  the  position  and 
functions  of  notaries  by  the  Reformation,  except  that  the  power 
of  granting  faculties,  which  hitherto  belonged  exclusively  to 
the  Pope,  was  assumed  by  King  Henry  VIII,  and  a  Court  of 
Faculty  was  created,  which  was  attached  to  the  Archbishop  of 
Canterbury,  to  which  Court  the  appointment  of  notaries  was 
delegated.5 

After  this,  it  is  apparent,  the  character  and  functions  of   a 

ill  Rymer's  Fzedera,  848. 

2  Robertson's  Charles  V,  Vol.  1,  p.  388. 

8  Act  I,  SceneS. 

4  By  Sir  Giles  Overreach,  in  Act  V  of  "A  New  "Way  to  pay  Old  Debts." 

6  Brooke,  Office  and  Practice  of  a  Notary,  p.  6. 


8  HISTORY   OP   THE   OFFICE.  §  9 

notary  were  no  less  considered,  as  appears  from  a  provision  re- 
specting the  recording  and  attesting  of  wills  in  certain  Courts 
in  the  reign  of  James  I,  of  which  an  account  is  thus  given : 

"  In  the  Canon  of  1st  James  I,  (1603)  respecting  wills  proved 
in  peculiar  and  inferior  Courts,  after  reciting  that  deans,  arch- 
deacons, prebendaries,  etc.,  etc.,  exercising  ecclesiastical  juris- 
dictions, having  no  known  or  certain  registers,  or  public  places 
to  keep  their  records  in,'by  reason  of  which  many  wills,  '  upon 
the  death  or  change  of  such  persons  and  their  private  notaries,' 
miscarry  and  cannot  be  proved,  it  is  therefore  ordered  that  all 
such  possessors  of  peculiar  jurisdiction  shall,  once  in  every 
year,  exhibit  into  the  public  registry  of  the  bishop  of  the 
diocese,  or  of  the  dean  and  chapter  under  whose  jurisdiction  the 
peculiars  are,  every  original  testament  by  them  proved  in  their 
several  peculiar  jurisdictions,  or  a  true  copy  of  every  such 
testament,  '  examined,  subscribed,  and  sealed,  by  the  peculiar 
judge  and  his  notary.'  "  l 

In  Scotland,  before  the  Reformation,  the  duties  of  notaries 
wece  generally  discharged  by  the  clergy ;  but  by  the  Act  of 
1584,  they  were  precluded  from  exercising  other  callings  than 
clerical  duties,  excepting  the  making  of  testaments ;  and  even 
this  was  soon  afterward  removed  and  laymen  were  exclusively 
appointed  to  the  office.2 

1  Gibson,  Codex  Juris  Ecclesiastic!  Anglicani,  Vol.  1,  Tit.  24,  p.  470. 

2  Brooke,  Office  and  Practice  of  a  Notary,  p.  7. 


10-11  APPOINTMENT   OF   NOTARIES. 


CHAPTER  II. 

APPOINTMENT  OF  NOTARIES. 

§  10.  Executive  generally  appoints. 

§  11.  In  England,  appointed  by  the  "  Courfrof  Faculties." 

§  12.  Appointment  in  United  States. 

§  13.  Qualifications  for  appointment. 

§  14.  Period  for  which  appointed. 

§  15.  Notaries  in  France. 

§  10.  Executive  generally  appoints. — As  a  general  rule, 
the  executive  power  in  every  State  is  intrusted  with  the  power 
and  authority  to  appoint  and  commission  notaries.  We  have 
already  adverted  to  the  practice  in  England  before  the  Reform- 
ation, when  the  Pope  exercised  the  right  to  appoint  notaries, 
as  included  under  his  general  power  of  appointing .  to  certain 
faculties,  as  it  was  termed.  In  the  American  States,  and 
throughout  the  Continent  of  Europe,  the  executive  exercises 
the  privilege  of  appointment. 

§  11.  In  England,  notaries  are  still  appointed  by  the  "  Court 
of  Faculties,"  which  is  stated  to  be  "  a  Court,  although  it  hold- 
eth  no  plea  of  controversie." 1  There  is  a  rule  that,  in  order  to 
practice  as  a  notary  in  London,  or  within  ten  miles  thereof,  a 
person  must  lyive  served  for  seven  years  as  an  apprentice  under  a 
qualified  notary  in  actual  practice,  and  if  within  three  miles,  he 
must  also  be  a  member  of  the  Scriveners'  Company.  To  prac- 
tice at  a  greater  distance  than  ten  miles  from  London,  a  person 
must  be  admitted  upon  the  production  of  a  certificate  of  clerk- 
ship of  five  years  to  a  notary,  or  an  attorney  and  notary.2 

The  following  is  a  form  of  a  commission  for  a  notary  practic- 
ing out  of  London,  taken  from  Brooke  : 

"  By  Divine  Providence,  Archbishop  of  Canterbury,  Primate 
of  all  England,  and  Metropolitan,  by  authority  of  Parliament, 
lawfully  empowered  for  the  purposes  herein  written  :  To  our 

1  Brooke,  Office  and  Practice  of  a  Notary,  p.  9.          25  and  7  Viet.  Chap.  90. 


10  APPOINTMENT  OF  NOTARIES.  §  12 

beloved  in  Christ,  C D ,  a  literate  person,  now  residing 

at  Liverpool,  in  the  County  of  Lancaster,  health  and  grace  :  We 
being  willing,  by  reason  of  your  merits,  to  confer  on  you  a  suit- 
able title  of  promotion,  do  create  you  a  Public  Notary,  previous 
examination  and  the  other  requisites  to  be  herein  observed  hav- 
ing been  had  ;  and  do,  out  of  our  favor  toward  you,  admit  you 
into  the  number  and  society  of  other  notaries,  to  the  end  that 
you  may  henceforward,'  in  all  places,  (except  within  the  juris- 
diction of  the  incorporated  Company  of  Scriveners  of  Lon- 
don) exercise  such  office  of  notary,  hereby  decreeing  that 
full  faith  ought  to  be  given,  as  well  in  judgment  as  thereout, 
to  the  instruments  to  be  from  this  time  made  by  you,  the  oaths 
hereunder  written  having  been  by  us,  or  our 'Master  of  the 
Faculties,  first  required  of  you,  and  by  you  taken. 

"  Provided  always,  that  these  presents  do  not  avail  you  any- 
thing, unless  duly  registered  and  subscribed  by  the  Clerk  of  1ier 
Majesty  for  Faculties  in  Chancery.  Given  under  the  Seal  of 
our  Office  of  Faculties  at  Doctors'  Commons,  this  —  —  day 

of ,  in  the  year  of  our  Lord  one  thousand  eight  hundred 

and ,  and  in  the  year  of  our  translation. 

"[Seal.]  J.  H.  T.  MANNERS  SUTTON, 

"  Registrar." 


"o* 


§  12.  Appointment  in  the  United  States. — In  a  majority 
of  our  States,  the  governor  has  the  power  of  appointing  nota- 
ries, without  the  nomination  being  submitted  to  or  passed  upon 
by  the  senate.  In  some  places,  the  appointment  is  made  after 
a  previous  recommendation  of  the  applicant.  Thus,  in  Illinois, 
the  governor  appoints  by  and  with  the  consent  of  the  senate, 
and  none  are  to  be  appointed  except  on  a  petition  of  fifty  legal 
voters  of  the  place  where  the  applicant  resides.1  In  Indiana, 
notaries  are  appointed  by  the  governor  upon  a  certificate  of  qual- 
ifications and  moral  character  from  the  judge  of  the  Circuit  or 
Common  Pleas  Court  of  their  counties  respectively.2  So  in 
Ohio,  the  governor  appoints,  but  each  applicant  is  to  produce  a 
certificate  from  a  judge  of  the  Court  of  Common  Pleas,  residing 
in  the  same  county  and  district,  stating  that  the  applicant  is  of 
good  moral  character,  and  an  elector  in  the  State.3 

i  Eev.  Stat.  1874,  p.  721.  2  1  G.  &  H.  445.  » i  Swan  &  C.  872. 


§  12  APPOINTMENT   OF   NOTARIES.  11 

In  the  following  States  the  appointment  is  made  by  and  with 
the  advice  and  consent  of  the  senate  :  Arkansas,1  Illinois,  Ken- 
tucky,2 Louisiana,3  Maryland,4  Minnesota,5  Michigan,6  New 
York,7  Texas.8 

In  Massachusetts  and  New  Hampshire,  the  governor  appoints 
by  and  with  the  advice  of  his  council.9 

In  Tennessee,  notaries  are  appointed  by  the  justices  of  the 
County  Court,  three  for  each  county.10  So  in  Vermont,  the 
judges  of  the  County  Court  may  annually  appoint  as  many  as 
the  public  good  may  require,  to  hold  office  for  one  year.  The 
certificate  of  appointment  must  be  signed  by  two  or  more  judges 
of  the  County  Court,  and  recorded.11  In  Rhode  Island,  notaries 
are  elected.12  - 

There  is  a  somewhat  singular  law  in  Georgia.  The  gov- 
ernor is  authorized  to  appoint  a  notary  for  each  militia  district, 
who  is  to  be  ex  officio  a  justice  of  the  peace.  And  another 
class  is  appointed,  termed  "  commercial  notaries,"  by  the  judges 
of  the  Superior  Court.13 

In  Mississippi,  before  1872,  the  duties  of  notaries  were  dis 
charged  by  justices  of  the  peace,  but  by  Act  of  April  5th, 
1872,  it  is  provided,  Sec.  1,  that  "  all  justices  of  the  peace  in 
this  State,  mayors  of  any  incorporated  city,  and  the  clerks  of 
the  Circuit  and  Chancery  Courts,  shall  be  notaries  public  by 
virtue  of  their  office."  In  Sec.  2,  the  "  governor  may  appoint 
one  notary  public  for  each  incorporated  city  or  town  having  a 
population  of  three  thousand  from  the  qualified  voters." 

iGantt's  Dig.  Sec.  4297. 
2  Gen.  Stat.  1873,  p.  676. 
s  Dig.  of  Stat.  1870,  p.  272. 
*  Gen.  Laws,  p.  468. 
eiBissell'sSt.  205. 
6Comp.  Laws,  1871,  p.  261. 
1 1  Rev.  Stat.  6th  Ed.  p.  379. 

8  Pascal's  Dig.  p.  788;  by  and  with  the  advice  of  two-thirds  of  the  senate.    It 
seems  that  the  governor's  appointment  of  a  notary  public  is  inoperative  without 
the  advice  and  consent  of  the  senate.    Brown  v.  State,  43  Tex.  478. 

9  Gen.  Stat.  1860,  p.  32;  Gen.  Stat.  K  H.  p.  62 
i"  1  Thomp.  &  S.  Sec.  1792. 

11  Gen.  Stat.  p.  97. 

12  Gen.  Stat.  1872,  p.  68. 

13  Code  1873,  Sec.  1497. 


12  APPOINTMENT  OF  NOTARIES.  §  13 

§  13.  Qualifications  for  appointment. — It  is  essential  in 
every  place  that  the  notary  be  a  citizen  of  the  State,  and  that 
he  be  a  person  of  good  moral  character.  In  some  States,  a  cer- 
tain length  of  residence  is  required  before  one  can  be  qualified. 
Thus,  in  Maryland,  the  applicant  must  have  had  a  residence  of 
two  years  in  the  State.1  In  Pennsylvania,  the  applicant  must 
have  resided  two  years  in  the  Commonwealth,  and  one  in  the 
city  and  county.2  It  .  is  required  in  some  States,  before  a 
notary's  certificate  is  issued,  that  he  file  a  bond  conditioned  for 
the  faithful  discharge  of  his  duties.  This  is  required  in  those 
States  where  notaries  are  intrusted  with  very  responsible  duties, 
and  to  whose  office  a  certain  dignity  and  deference  is  attached. 
There  is  a  very  loose  method  of  appointment  in  some  States : 
the  appointments  are  not  restricted  in  number,  and  no  bond  is 
exacted,  and  it  is  there  found  that  notaries  perform  their  du- 
ties very  carelessly.3 

In  Alabama,  notaries  are  required  to  give  a  bond  of  $2,000, 
to  be  approved  by  the  probate  judge.4 

In  California,  "  each  notary  must  execute  an  official  bond  in 
the  sum  of  $5,000,  which  bond  must  be  approved  by  the  county 
judge  of  his  county,  and  filed  and  recorded  as  other  official 
bonds  of  county  officers."5  And  in  Wisconsin,  a  bond  of  $500 
is  required.6 

In  Pennsylvania,  by  Act  of  February  19th,  1873,  the  gov- 
ernor is  authorized  to  appoint  as  many  notaries  as  he  deems 
necessary ;  but,  before  a  commission  is  issued,  the  appointee 
must  pay  twenty-five  dollars  for  the  use  of  the  Commonwealth. 

In  Iowa,  before  any  commission  is  delivered  to  a  notary,  he 
must  qualify  as  follows  :  1.  Procure  a  seal,  on  which  shall  be 
engraved  the  words  "  Notarial  Seal,"  and  "  Iowa,"  with  his  sur- 
name at  length,  and  at  least  the  initials  of  his  Christian  name. 
2.  He  must  execute  a  bond  in  the  amount  of  $500.  3.  He  shall 

1  Gen.  Laws,  p.  468. 

2  Pardon's  Dig.  p.  758. 

8  This  is  the  case  in  New  York,  where  no  bond  is  required,  and  where  appoint- 
ments are  made  very  indiscriminately.  A  large  proportion  of  the  members  of 
the  bar  in  New  York  city  are  notaries. 

*  Code,  Sec.  1080. 

e  Political  Code,  Sec.  799. 

6 1  Rev.  Stat.  283. 


§  14  APPOINTMENT   OF  NOTARIES.  13 

write  on  said  bond  his  signature,  and  place  on  it  an  impression 
of  his  seal.  4.  He  shall  file  the  bond  and  papers  in"<the  Secre- 
tary of  State's  office.  5.  Remit  to  the  Secretary  of  State  the 
fee  required  by  law.1 

§  14.  Period  for  which  appointed. — In  a  few  of  our  States, 
notaries  are  appointed  to  hold  office  during  good  behavior.  This 
is  the  case  in  Florida,2  South  Carolina,3  West  Virginia,4  and  was 
in  Virginia,  until  the  Act  of  March  8, 1873,  authorized  the  gov- 

i  Code,  1873,  p.  42. 

In  the  following  States,  in  addition  to  those  named  above,  notaries  are  re- 
quired to  give  bonds  for  the  faithful  discharge  of  their  duties  : 
FLORIDA. — §500  to  governor,  filed  in  the  office  of  the  clerk  of  the  Circuit  Court. 

(Bush's  Dig.  p.  013.) 
ILLINOIS. — §1,000  to  the  people,  to  be  approved  by  the  governor.    (Rev.  Stat. 

p.  721.) 

INDIANA.— $1,000.    (1  G.  &  H.  445.) 
KANSAS. — §1,000  to  the  State,  with  one  or  more  sureties,  to  be  approved  by 

county  clerk.    (Gen.  Stat.  1S68,  p.  597.) 

KENTUCKY.— Bond  required,  amount  not  stated.    (Gen.  Stat.  1873,  p.  667.) 
LOUISIANA.— §5,000  for  the  parish  of  Orleans ;  $1,000  elsewhere.    (Rev.  Stat. 

1870,  Sec.  2503.)    And  he  must  have  resided  in  the  parish  five  years  before  ap- 
pointment. 
MARYLAND. — $2,000  to  State,  approved  by  the  governor.    (Gen.  Laws,  1860,  p. 

469.) 
MICHIGAN.— §1,000  to  the  people,  with  sureties  approved  by  the  county  clerk. 

(Comp.  Laws,  1871,  Sec.  600.) 
MINNESOTA.— §2,000  to  State,  approved  by  the  governor.    (1  Bissell's  Stat.  p. 

205.) 

MISSISSIPPI.— §2,000.     (Act  April  5th,  1872.) 
MISSOURI. — §500  to  the  State,  with  two  good  sureties  ;  notaries  in  St.  Louis  to 

give  bond  in  §2,000.    (2  Wagner's  Stat.  p.  959.) 
NEBRASKA.— §2,000,  with  two  sureties.    (Gen.  Stat.  p.  492.) 
NEVADA.— §2,000,  to  be  approved  by  district  judge.    (Comp.  Laws,  Sec.  331.) 
OHIO. — §1,500,  approved  by  the  governor.    (1  Swan  &  C.  873.) 
OREGON.— §500  to  the  governor,  with  sufficient  sureties    (Gen.  Laws,  p.  689.) 
PENNSYLVANIA. — Give  a  bond  himself  in  £600,  and  two  sureties  £300  each. 

(Purdon's  Dig.  p.  758.) 

TENNESSEE.— §5,000  to  State,  with  good  seciirity.    (Rev.  Stat.  1871,  Sec.  1794.) 
TEXAS.— §2,000,  approved  by  the  County  Court.    (Paschal's  Dig.  p.  261.) 
VIRGINIA.— Not  less  than  §500,  within  four  months  from  the  date,  or  more  than 

§1,000  of  his  commission.    (Act  of  March  8th,  1873.) 

WEST  VIRGINIA.— Not  less  than  §250,  or  more  than  §1,000.    (Code  1868,  p.  80.) 
Y\'ISCONSIN.— §500  to  the  governor,  with  sufficient  surety,  and  pay  §2  into  the 

treasury.    (1  Taylor's  Stat.  p.  284.) 
In  Georgia,  it  is  provided  that  the  appointee  must  be  twenty-one  years  old,  or 

an  attorney-at-law,  and  of  good  moral  character.    (Code  1873  Sec.  1503.) 

2  Thomp.  Dig.  p.  240. 

3  Rev.  Stat.  1873,  p.  113. 
*  Code  1868,  p.  386. 


14  APPOINTMENT   OF   NOTARIES.  §  15 

ernor  to  appoint  one  notary  for  every  five  hundred  of  the  pop- 
ulation, to  hold  office  for  four  years.  In  a  great  many  States 
four  years  is  the  period  for  which  the  appointment  is  made.1 
In  other  States  it  is  two  years,  as  in  Connecticut,  where  they 
hold  office  from  the  4th  of  July  of  the  year  in  which  they 
are  commissioned;2  Minnesota,  Nevada,  New  York,  Oregon, 
Wisconsin,  and  California.  In  Iowa,  Pennsylvania,  and  Ohio, 
the  appointment  is  for  three  years.3  In  Missouri  and  Nebraska, 
the  period  is  six  years.4  The  longest  definite  period  is  seven 
years,  as  in  Delaware6  and  Massachusetts.6  In  New  Hamp- 
shire, the  period  is  five  years.7 

§  15.  Notaries  in  France  are  divided  into  three  classes,  ac- 
cording to  the  extent  of  district  in  which  they  may  exercise 
their  functions.  Those  of  the  first  class  are  nominated  for 
towns,  or  seats  of  an  imperial  Court ;  those  of  the  second  class 
are  nominated  for  towns,  or  seats  of  a  tribunal  of  first  instance  ; 
and  those  of  the  third  class  are  nominated  for  all  other  places  ; 
but  an  act  duly  authenticated  by  a  notary  is  valid  without  re- 
gard to  the  domicile  of  the  party,  or  whether  or  not  the  notary 
has  drawn  it  within  the  extent  of  his  jurisdiction.8 

1  This  is  the  period  in  Georgia,  Illinois,  Indiana,  Kansas,  Kentucky,  Michigan, 
Tennessee,  Texas,  and  Colorado. 

2  Gen.  Stat.  1875,  p.  21. 

s  Iowa,  Code  1873,  Sec.  258  ;  Penn.  Purdon's  Dig.  p.  758  ;  1  Swan  &  C.  872. 

<  Wagner's  Stat.  p.  959  ;  Neb.  Gen.  Stat.  1873,  p.  280. 

6  Rev.  Code,  1874,  p.  182. 

6  Gen.  Stat.  1860,  p.  32. 

TGen.  Stat.  p.  G2. 

8  E.  Clerc,  Notariat  en  France,  Tome  1,  p.  3. 

This  writer  gives  the  fullest  account  of  notaries  in  France,  in  a  work  consist- 
ing of  four  volumes,  in  addition  to  two  of  forms.  He  points  out  (pp.  1,  2)  that 
before  the  time  of  the  Revolution  the  office  was,  like  many  others  in  France, 
hereditary,  and  one  of  great  emolument.  The  first  change  was  made  by  a  law 
of  Sept.  2'Jth,  1791,  which  attempted  to  organize  the  notaries  into  classes.  But 
the  law  which  defined  the  powers  and  duties  and  jurisdiction  of  notaries  was 
that  of  the  twenty-fifth  Ventose  in  the  year  XI,  passed  in  1793.  The  law  is  di- 
vided into  three  titles  :  The  first  regulates  the  functions,  jurisdiction,  and  duties 
of  notaries,  and  the  manner  in  which  their  acts  are  to  be  performed  iu  regard  to 
keeping  a  register,  making  copies  and  duplicates  ;  the  second  determines  the 
number,  their  residence,  security  to  be  given  by  them,  the  mode  of  nomination 
and  condition  of  admission,  the  institution  of  chambers  of  discipline,  and  the 
keeping  and  transmission  of  records  ;  and  the  third  relates  to  general  matters 
in  connection  with  the  office.  The  number  is  .thus  determined  by  the  law  of  the 
twenty-fifth  Ventose  :  In  every  city  of  a  hundred  thousand  inhabitants  or  over. 


§  15  APPOINTMENT   OF   NOTARIES.  15 

The  functions  and  duties  of  a  notary  in  France  are  exceed- 
ingly important ;  notarial  acts  enter  into  almost  every  trans- 
action in  French  society,  and  the  office  is  sought  as  one  of  emol- 
ument and  considerable  dignity,  often  being  transmitted  from 
father  to  son.  Notaries  officiate  to  give  a  certain  authenticity 
to  acts  of  parties,  thereby  making  these  acts  somewhat  of  a 
public  nature.  An  authentic  act  is  defined  by  the  Civil  Code  l 
to  be  that  which  has  been  received  by  a  public  officer,  having 
the  right  to  draw  up  such  instrument  in  the  place  where  the 
act  was  made,  and  which  is  prepared  with  the  required  solemni- 
ties. The  authentic  act  is  full  proof  of  the  convention  which 
it  embodies  between  the  contracting  parties,  their  heirs  or  as- 
signs, but  in  case  of  complaint  of  fraud  the  execution  of  the 
act  may  be  suspended.2  Such  authentic  act  must  be  received 
by  two  notaries,  or  by  a  notary  assisted  by  two  witnesses,  being 
French  citizens,  able  to  write,  and  domiciled  in  the  district  where 
the  act  is  made.3 

A  French  writer  thus  expresses  himself  on  the  profession  of 
a  notary :  "  La  profession  de  notaire  est  d'une  etendue  im- 
mense, puisqu'a  proprement  parler,  il  n'y  a  point  d' affaire  qui 
puisse  etre  de  son  ressort,  ni  de  personnes  qui  n'en  eprouvent 
tous  les  jours  la  necessite.  Mais  si  sa  vaste  etendue  fait  son 
eloge,  on  ne  scauroit  disconvenir  qu'elle  n'en  fasse  aussi  la  diffi- 
culte :  L'emploi  de  depositaire  de  la  confiance  de  toute  le 
monde,  demande  des  qualites  extraordinaires  dans  celui  qui 
1'exerce ;  et  il  est  assez  difficile  d'avoir  de  si  grandes  et  de  si 
frequentes  liaisons  avec  le  public,  sans  courir  souvent  risque  de 
lui  nuire.  Ainsi,  la  probite,  qui  doit  etre  le  caractere  essentiel 
de  tous  les  hommes,  et  qui  suffit  dans  quelques-uns  des  emplois 
de  la  vie  civile,  ii'est  pas  suffisante  dans  un  notaire  ;  peut-etre 
meme  ne  seroit-elle  pour  lui  qu'une  qualite  sterile,  si  elle  n'etait 
eclairee  par  la  science."  4 

there  is  to  be  one  appointed  for  every  six  thousand  inhabitants.  In  other 
cities,  boroughs,  or  villages,  there  may  be  not  less  than  two  or  more  than  iivo 
appointed  for  every  department  of  the  justice  of  the  peace.  To  assure  com- 
plete independence,  they  are  appointed  for  life.  They  cannot  be  removed  from 
their  residence  without  their  own  consent. 

1  Sec.  1317. 

2  Sec.  1319. 

8  Art.  9,  Law  25  Ventose,  An.  XI. 

*  La  Science  parfaite  des  Notaires,  par  De  Ferriere,  Tome  1,  p.  1. 


16  OFFICE   AND   DUTIES.  SS  16-17 


CHAPTER  m. 

OFFICE  AND  DUTIES. 

§  16.  In  general. 

§  17.  The  States  in  which  notaries  do  not  take  acknowledgments. 

§  18.  In  Louisiana. 

§  19.  May  act  as  justices  of  the  peace  in  some  States. 

§  20.  May  take  depositions. 

§  21.  The  power  to  take  affidavits. 

§  22.  Have  a  local  jurisdiction. 

§  23.  Powers  and  duties  under  United  States  laws. 

§  24.  Under  the  bankrupt  law. 

§  25.  Affidavits  required  by  mining  laws. 

§  26.  May  take  depositions  in  certain  cases. 

§  27.  Duty  as  to  keeping  records. 

§  28.  Requirements  as  to  a  notarial  seal. 

§  16.  In  general,  the  chief  official  duties  of  notaries  in  this 
country  are  to  evidence  certain  acts,  and  confer  upon  them  a 
certain  authenticity;  as  to  take  the  acknowledgment  of  deeds 
and  of  other  instruments  in  writing ;  to  make  protest  of  nego- 
tiable paper  and  give  notice  thereof  to  parties  entitled ;  to 
administer  oaths ;  to  take  affidavits  and  depositions ;  and,  in 
maritime  cities,  to  make  marine  protests.  Thus,  Lord  Tenterden 
observes,  in  King  v.  The  Scriveners'  Company : 1  "  There  is 
another  part  of  the  duty*  of  notaries,  and  that  is  to  receive  the 
affidavits  of  mariners  and  masters  of  ships,  and  then  to  draw 
up  their  protests,  which  is  a  matter  that  requires  care,  atten- 
tion, and  diligence.  Besides  that,  many  documents  pass  before 
notaries,  under  their  notarial  seal,  which  gives  effect  to  them 
and  render?  them  evidence  in  foreign  countries." 

In  some  of  our  States  some  of  these  powers  are  withheld 
from  notaries,  while  in  others  they  are  intrusted  with  addi- 
tional functions,  which  will  be  noticed. 

§  17.  The  States  in  which  notaries  do  not  take  ac- 
knowledgments of  deeds  are  :  Kentucky,  Maine,  Maryland, 

.  &c.  518. 


§  17  OFFICE   AND    DUTIES.  17 

and  New  Jersey.  In  Mississippi,  since  1872,  notaries  are  em- 
powered to  "  receive  the  proof  or  acknowledgment,  of  all  in- 
struments of  writing  relating  to  commerce  and  navigation, 
letters  of  attorney,  and  such  other  writings  as  are  commonly 
proved  before  notaries  within  the  United  States." l  And  by 
Sec.  7  of  the  same  act  they  are  given  power  to  take  the  ac- 
knowledgments of  deeds. 

Before  1872,  in  this  State,  acknowledgments  were  to  be  made 
before  a  judge  of  the  Supreme  Court,  or  any  judge  of  the 
Circuit  Court,  any  chancellor,  any  clerk  of  a  Court  of  Record, 
a  justice  of  the  peace,  or  a  member  of  the  board  of  county 
supervisors.2 

In  Maine,  acknowledgments  of  deeds  are  made  before  justices 
of  the  peace ;  but  if  made  out  of  the  State,  they  may  be  taken 
by  a  notary.3  In  Brown  v.  Lunt,  it  was  held  that  an  acknowledg- 
ment of  a  deed  before  a  justice  of  the  peace  de  facto  is  suffi- 
cient.4 

In  Maryland,  notaries  have  no  power  to  take  acknowledg- 
ments, but  acknowledgments  properly  taken  out  of  the  State 
may  be  received  in  evidence. 

In  New  Jersey,  acknowledgments  may  be  taken  before  a  jus- 
tice of  the  Supreme  Court,  one  of  the  masters  in  chancery,  one 
of  the  judges  of  common  pleas,  or  before  a  commissioner  of 
deeds  appointed  by  the  governor.5 

In  North  Carolina,  acknowledgment  of  deeds  is  made  before 
a  judge  of  probate,  since  the  adoption  of  the  Code  of  Procedure 
in  18G8.°  By  Chapter  32  of  the  Laws  of  1870  it  is  declared 
that  the  probate  of  all  deeds  and  other  instruments,  under  laws 
prior  to  the  adoption  of  the  Code  of  Civil  Procedure,  are  valid 
as  if  taken  under  existing  laws ; 7  but,  under  the  present  law, 
notaries  can  take  acknowledgments,  though  they  are  not  per- 
mitted to  take  the  privy  examination  of  femes  covert? 

*  Act  April  5th,  1872. 

2  Code  1871,  Sec.  2310. 

3  Eev.  Stat.  1871,  p.  5G1. 

*  37  Me.  423. 

5  Nixon's  Digest,  p.  144. 
c  Civil  Code  of  Proced.  Sec.  429. 

"  Before  this,  acknowledgments  were  taken  before  one  of  the  judges  of  the 
Supreme  or  Superior  Court,  or  in  the  County  Court  where  the  land  was  situated. 
8  Rev.  Code,  1855,  p.  23<J;  Battle's  Dig.  p.  GrX). 

NOTARIES — 2. 


18  OFFICE   AND   DUTIES.  §§    18-19 

§  18.  In  Louisiana,  as  we  might  naturally  expect  from  its 
former  history,  notaries  are  intrusted  with  large  and  responsible 
powers,  and  have  duties  to  perform  like  those  devolving  upon 
notaries  in  France. 

They  are  empowered  "  to  make  inventories,  appraisements, 
partitions,  to  receive  wills,  make  protests,  matrimonial  contracts, 
conveyances,  and  generally  all  contracts  and  instruments  in 
writing ;  to  hold  family  meetings  and  meetings  of  creditors  ;  to 
receive  acknowledgments  of  instruments  under  private  signa- 
ture ;  to  affix  the  seals  upon  the  effects  of  deceased  persons,  and 
to  raise  the  same." 1 

And  notaries  in  the  parish  of  West  Feliciana  are  authorized 
to  perform  the  marriage  ceremony.2 

In  Florida,  notaries  are  also  authorized  to  solemnize  the  ritea 
of  matrimony.3 

§  19.  May  act  as  justices  of  the  peace  in  some  States. 
— In  Georgia,  notaries  are  invested  with  the  powers  of  justices 
of  the  peace,  by  virtue  of  their  office.  In  Lynes  -y.  State,4  it  is 
held  that,  under  the  Constitution  of  1868,  commissioned  notaries 
public  are  clothed  with  judicial  powers;  they  are  ex  officio 
justices  of  the  peace. 

In  some  of  our  States  there  has  always  been  an  intimate  rela- 
tion between  the  office  of  a  notary  and  that  of  a  justice  of  the 
peace.  In  Mississippi,  until  recently,  justices  of  the  peace  dis- 
charged the  duties  of  notaries ;  and,  in  Virginia,  notaries  are 
allowed  to  exercise  the  powers  and  functions  of  "  conservators 
of  the  peace."5  *• 

In  Texas,  the  constitution  gives  to  justices  of  the  peace  the 
power  to  act  as  notaries  ex  officio.  In  Gilleland  v.  Drake,6  it 
was  held  that  though  the  constitution  recognizes  justices  of  the 
peace  as  notaries  ex  officio,  it  did  not  thereby  abolish  the  office 
of  notary,  or  do  away  with  the  Law  of  1846.  Notaries  are  rec- 
ognized and  validity  given  to  their  official  acts  by  foreign  gov- 
ernments, who  would  not  accord  the  same  recognition  to  the 
notarial  acts  of  such  ex  officio  notaries  as  justices  of  the  peace, 

1  Rev.  Stat,  1870,  Sec.  2492.  *  4G  Ga.  208. 

2  Sec.  2211.  6  Act  March  8th,  1873. 
8  Bush's  Digest,  p.  613.'  «  36  Tex.  G77. 


§§  20-21  OFFICE   AND   DUTIES.  19 

and  therefore  it  was  held  that  the  necessity  of  continuing  the 
office  was  understood  by  the  fraraers  of  the  constitution,  and 
their  intention  was  not  to  repeal  the  Law  of  1846,  under  which 
they  were  appointed. 

By  Section  1091  of  the  Alabama  Code,  it  is  provided: 
"  When  there  is  no  notary  public,  or  he  is  absent  or  incapable 
of  acting,  any  justice  of  the  peace  may  discharge  the  duties  re- 
quired of  such  notary  by  the  laws  of  this  State,  for  which  he 
shall  receive  the  fees  allowed  by  law  for  such  services ;  but 
when  he  acts  as  a  notary  he  must  set  forth,  in  his  certificate, 
protest,  or  notice,  that  there  is  no  notary  public,  or  that  the 
notary  public  is  absent  or  incapable  of  acting,  which  certificate 
shall  be  evidence  of  such  fact."  This  is  almost  identical  with 
Article  2304  of  the  Civil  Code  of  Lower  Canada,  which  enacts : 
"  In  case  there  is  no  notary  in  the  place,  or  he  is  unable  or  re- 
fuses to  act,  any  justice  of  the  peace  in  Lower  Canada  may 
make  such  noting  and  protest,  and  give  notice  thereof  in  the 
same  manner ;  and  his  acts  in  that  behalf  have  the  same  effect 
as  if  done  by  a  notary ;  but  such  justice  must  set  forth  in  the 
protest  the  reasons  why  the  same  was  not  made  by  the  ministry 
of  a  notary." 

§  20.  Notaries  take  depositions  in  more  than  two-thirds 
of  our  States  by  virtue  of  their  office,  and  are  intrusted  with 
the  necessary  powers  to  issue  subpoenas  for  witnesses,  punish 
for  contempt,  and  do  whatever  is  required  to  carry  out  their 
duties  in  this  respect,  as  justices  of  the  peace  may  do.1  From 
an  examination  of  the  statutes  of  the  various  States,  it  appears 
that  notaries,  as  such,  are  not  authorized  to  take  depositions'  in 
the  States  of  Alabama,  Delaware,  Florida,  Georgia,  Maryland, 
Massachusetts,  Michigan,  Mississippi,  New  Jersey,  and  New 
York.  In  Louisiana,  they  are  authorized  to  take  depositions  in 
the  parish  of  Orleans.2 

§  21.  The  power  to  take  affidavits  seems  to  have  been  a 
function  of  a  notary  public  for  a  very  long  time ;  though  a  notary 
had  not  necessarily  this  power  by  virtue  of  his  office  under  the 
common  law,  but  derived  it  from  statutory  enactments.  Brooke, 

1 1  have  examined  in  Sec.  70.  the  powers  of  notaries  when  taking  depositions. 
2  Digest  of  Stat.  1870,  Sec.  'J539. 


20  OFFICE    AND    DUTIES.  §  22 

in  regard  to  this,  says :  "  The  English  notaries  in  general  ap- 
pear (as  far  back  as  the  memory  of  man  extends)  to  have 
always  considered  themselves  entitled  to  administer  oaths,  affi- 
davits, and  affirmations,  as  within  the  powers  and  functions  of  a 
notary,  and  Lord  Chief  Justice  Tenterden,  in  the  King  v. 
Scriveners'  Company,1  stated  that  it  was  part  of  their  duty  to 
receive  affidavits  of  mariners  and  masters  of  ships,  and  then  to 
draw  up  their  protests.  -The  Act  of  6  Geo.  IV,  Chap.  87,  Sec.  20, 
may  be  referred  to  as  countenancing,  in  some  degree,  the  idea 
that  they  are  authorized  to  administer  oaths  ;  though  at  one 
time  a  different  opinion  seems  to  have  prevailed  amongst  the 
London  notaries."  2 

In  all  our  States  the  power  is  conferred  by  statute  ;  and, 
therefore,  Courts  will  not  take  judicial  cognizance  of  a  notary's 
power  to  administer  oaths  in  another  State ;  it  must  appear  in 
evidence  that  the  power  is  conferred  by  statute.3  In  New  Jer- 
sey, before  1864,  there  was  some  doubt  as  to  the  validity  of  affi- 
davits before  a  notary ;  a  statute  was  passed  reciting  that, 
"  whereas,  a  question  has  arisen  as  to  the  validity  of  affidavits 
taken  and  sworn  to  before  a  notary  public  under  the  authority 
of  the  common  law,"  and,  therefore,  it  was  enacted  that  "  all 
oaths,  affirmations,  and  affidavits  heretofore  made  or  taken  for 
any  lawful  purpose  by  and  before  a  notary  public,  duly  certi- 
fied under  his  hand  and  official  seal,  shall  be  valid."  4 

In  North  Carolina,  before  1866,  notaries  were  not  authorized 
to  administer  oaths ;  but,  by  Ch.  30  of  Laws  1866,  this  power 
was  given  "in  matters -incident  or  belonging  to  the  duties  of 
this  office." 

§  22.  Notaries  have  a  local  jurisdiction  in  the  State, 

as  a  general  rule ;  they  can  only  exercise  their  functions  in  the 
county  or  district  for  which  they  are  commissioned.  But  in  some 
places  they  are  authorized  to  exercise  their  official  powers 
throughout  the  State,  so  long  as  they  reside  in  the  place  for  which 
they  were  appointed.  In  Connecticut,  they  may  act  throughout 
the  State.  In  Indiana,5  they  are  authorized  to  do  the  same,  but 

1 10  B.  &  C.  518.  a  Reefer  v.  Mason,  30  111.  40G. 

2  Office  and  Practice  of  a  Notary,  p.  14.         4  Nixon's  Digest,  p.  G29. 
5  Gen.  Stat.  1875,  p.  21. 


§  23  OFFICE   AND    DUTIES.  21 

are  not  compelled  to  act  out  of  the  county.1  So,  in  Maryland, 
a  notary  may  act  out  of  the  county.2  In  Michigan,t  it  is  pro- 
vided :  "  Notaries  public  shall  reside  in  the  county  for  which 
they  are  appointed ;  but  they  may  act  as  such  notaries  in  any 
part  of  the  State,  and  they  shall  receive  for  their  services  such 
fees  as  are  provided  by  law."3  They  can  act  in  Wisconsin 
throughout  the  State.4  In  New  York,  a  notary  public  appointed 
for  either  of  the  counties  of  Kings,  Queens,  Richmond,  West- 
chester,  Putnam,  Suffolk,  Rockland,  and  the  city  and  county  of 
New  York,  may  take  acknowledgments,  and  exercise  any  of 
the  functions  of  his  office  in  any  of  these  counties,  by  procuring 
from  the  clerk  of  his  county  a  certified  copy  of  his  appoint- 
ment, and  filing  the  same  with  his  autograph  signature  in  the 
clerk's  office  of  any  of  the  other  of  said  counties.5 

§  23.  Powers  and  duties  under  United  States  laws. — 

By  Sec.  1778  of  the  Revised  Statutes  it  is  enacted :  "  In  all 
cases  in  which,  under  the  laws  of  the  United  States,  oaths  or 
acknowledgments  may  now  be  taken  or  made  before  any  justice 
of  the  peace  of  any  State  or  Territory,  or  in  the  District  of 
Columbia,  they  may  hereafter  also  be  taken  or  made  by  or 
before  any  notary  public  duly  appointed  in  any  State,  District, 
or  Territory,  or  any  of  the  commissioners  of  the  Circuit  Courts ; 
and  when  certified  under  the  hand  and  official  seal  of  such 
notary  or  commissioner,  shall  have  the  same  force  as  if  taken 
or  made  by  or  before  such  justice  of  the  pe  ce." 

At  the  last  session  of  Congress  (approved  August  15th, 
1876)  an  important  bill  was  passed,  enlarging  the  powers  of 
notaries  under  the  laws  of  the  United  States.  It  enacts : 
"That  notaries  public  of  the  several  States,  Territories,  and  the 
District  of  Columbia,  be  and  they  are  hereby  authorized  to  take 
depositions  and  do  all  other  acts  in  relation  to  taking  testimony 
to  be  used  in  the  Courts  of  the  United  States,  and  take  ac- 
knowledgments and  affidavits  in  the  same  manner,  and  with  the 
same  effect,  as  commissioners  of  the  United  States  Circuit 
Courts  may  now  lawfully  take  or  do." 

1 1  G.  &  H.  445.  s  Comp.  Laws  1871,  Sec.  607 

2  Gen.  Laws  1860,  p.  470.  *  1  Taylor's  Stat.  p.  284. 

5  Laws  1875,  Chap.  458. 


22  OFFICE   AND   DUTIES.  §§  24-26 

§  24.  Under  the  bankrupt  law. — A  notary  public  may 
take  proof  of  debts  according  to  the  Act  of  Congress  of  June 
22d,  1874,  Sec.  20,  which  provides : 1  "  That  in  addition  to  the 
officers  now  authorized  to  take  a  proof  of  debts  against  the 
estate  of  a  bankrupt,  notaries  public  are  hereby  authorized  to 
take  such  proof  in  the  manner  and  under  the  regulations  pro- 
vided by  law ;  such  proof  to  be  certified  by  the  notary  and 
attested  by  his  signature  and  official  seal."  The  name  of  the 
notary  must  be  engraved  on  the  seal,  so  as  to  make  it  his  official 
seal.2  Lately,  it  has  been  held  that  letters  of  attorney  to  repre- 
sent creditors  may  be  acknowledged  before  a  notary  public. 
General  Order  No.  34,  providing  that  such  letters  may  be 
acknowledged  or  proved  before  a  register,  or  United  States 
commissioner,  was  not  intended  to  be  exclusive  of  other  methods 
of  proof.3 

§  25.  Affidavits  required  by  mining  laws. — By  the  Ee- 

vised  Statutes  of  the  United  States,  Sec.  2335,  it  is  provided : 
"  All  affidavits  required  to  be  made  under  this  chapter  may  be 
verified  before  any  officer  authorized  to  administer  oaths  within 
the  land-district  where  the  claims  may  be  situated,  and  all  testi- 
mony and  proofs  may  be  taken  before  any  such  officer,  and, 
when  duly  certified  by  the  officer  taking  the  same,  shall  have 
the  same  force  and  effect  as  if  taken  before  the  register  and 
receiver-  of  the  land  office."  4 

§  26.  Majr  take  depositions  in  certain  cases. — The  Re- 
vised Statutes  provide  :  ^  i'  The  testimony  of  any  witness  may 
be  taken  in  any  civil  cause  depending  in  a  District  or  Circuit 
Court  by  deposition  de  bene  esse  when  the  witness  lives  at  a 
greater  distance  from  the  place  of  trial  than  one  hundred  miles, 
or  is  bound  on  a  voyage  to  sea,  or  is  about  to  go  out  of  the 
United  States,  or  out  of  the  district  in  which  the  case  is  to  be 

1  See  Vol.  18,  U.  S.  Stat.  p.  186. 

2  In  re  Henry  Nebe,  11  Bank.  Reg.  289. 

» In  re  Butteraeld  &  Butt,  14  Bank.  Reg.  195.      See  Desty's  Fed.  Proced.  p.  3G2. 

4  Under  the  Pension  Laws,  a  notary  may  take  the  affidavit  of  a  claimant  of  a 
pension  for  service  in  the  War  of  1812,  when  the  claimant  is  unable,  by  reason 
of  age  or  infirmity,  to  travel ;  and  when  any  claimants  reside  more  than  twenty- 
five  miles  from  a  Court,  the  Commissioner  of  Pensions  has  power  to  name  nota- 
ries to  take  their  affidavits.  Rev.  Stat.  Sec.  4714. 

6  Sees.  863,  864. 


§  27  OFFICE   AND   DUTIES.  23 

tried,  and  to  a  greater  distance  than  one  hundred  miles  from 
the  place  of  trial,  before  the  time  of  trial,  or  whefl.he  is  aged 
and  infirm.  The  deposition  may  be  taken  before  any  judge  of 
any  Court  of  the  United  States,  or  any  commissioner  of  a 
Circuit  Court,  or  any  clerk  of  a  District  or  Circuit  Court,  or 
any  chancellor,  justice,  or  judge  of  a  Supreme  or  Superior  Court, 
mayor  or  chief  magistrate  of  a  city,  judge  of  a  County  Court  or 
Court  of  Common  Pleas,  or  any  notary  public  not  being  of 
counsel  or  attorney  to  either  of  the  parties,  nor  interested  in  the 
.event  of  the  cause." 

"  Every  person  deposing  as  provided  in  the  preceding  section 
shall  be  cautioned  and  sworn  to  testify  the  whole  truth  and 
carefully  examined.  His  testimony  shall  be  reduced  to  writing 
by  the  magistrate  taking  the  deposition,  or  by  himself  in  the 
magistrate's  presence,  and  by  no  other  person,  and  shall,  after  it 
has  been  reduced  to  writing,  be  subscribed  by  the  deponent." 

§  27.  Duty  as  to  keeping  records.— In  a  large  majority 
of  our  States,  notaries  are  required  to  keep  a  register,  in  which 
they  shall  record  their  official  acts,  especially  their  acts  in  rela- 
tion to  the  protest  of  negotiable  paper.1  There  are  strict  and 
precise  provisions  in  regard  to  this  duty  in  the  statutes ;  and  in 
case  of  death,  disqualification,  or  removal,  the  records  are  to  be 
deposited  in  places  designated,  and  a  failure  to  do  this  subjects 
the  notary,  or  his  personal  representatives  in  case  of  his  death, 
to  a  fine.  The  period  within  which  the  records  must  be  depos- 
ited is  generally  thirty  days,  and  the  person  into  whose  custody 
they  are  given  is,  as  a  general  rule,  the  county  clerk. 

Thus,  it  is  provided  in  California :  "  If  a  notary  die,  resign, 
is  disqualified,  removed  from  office,  or  removes  from  the  county 
for  which  he  is  appointed,  his  records  and  all  his  public  papers 
must,  within  thirty  days,  be  delivered  to  the  clerk  of  the  county, 
who  must  deliver  them  to  the  notary's  successor,  when  quali- 
fied."2 

1  The  following  States,  as  far  as  we  can  determine,  have  no  distinct  provision  in 
their  statutes  making  it  obligatory  on  notaries  to  keep  a  register:  Connecticut, 
Delaware,  Florida,  Indiana,  Xew  York,  North  Carolina,  Rhode  Island,  South 
Carolina,  Vermont,  and  Virginia.    However,  as  a  rule,  notaries  make  a  record 
of  protests  and  notices. 

2  Political  Code,  Sec.  796. 

The  Iowa  statute  requires  the  records  to  be  deposited  within  three  months. 


24  OFFICE   AND   DUTIES.  §  28 

The  statute  of  Illinois  is  very  specific  as  to  what  the  record 
shall  contain.  It  is  required  to  be  a  correct  record  of  all  pro- 
tests and  notices,  and  of  the  time  and  manner  in  which  they  are 
served,  names  of  parties,  to  whom  directed,  and  the  description 
and  the  amount  of  the  instrument.1 

§  28.  The  requirements  as  to  a  notarial  seal  arc  ex- 
pressly stated  in  many  of  our  statutes ;  and  this  is  a  matter  of 
much  importance,  since  a  seal  is,  in  most  places,  the  evidence  of 
the  authenticity  of  the  instrument ;  and  when  a  statute  requires 
a  particular  description  of  seal,  that  precise  seal  must  be  used 
by  the  notary,  or  the  instrument  will  not  be  duly  authenticated.2 
Thus,  it  was  held,  in  Iowa,  that  the  seal  of  a  notary  public  for 
Iowa,  resident  in  another  State,  is  entitled  to  credit  in  evidence 
only  when  it  has  his  name  engraved  upon  it,  and  the  words  "  nota- 
rial seal,"  and  "Iowa,"  the  impression  of  all  which  must  appear 
on  the  paper,  and  a  defect  in  the  impression  is  not  sufficiently 
supplied  by  writing.3 

We  shall  notice  the  requisites  of  the  seal,  as  required  by  the 
statutes  of  some  of  the  States : 

ALABAMA. — Must  have  on  it,  the  name,  office,  State,  and 
county ;  and  in  this  State  it  was  held  that  the  official  acts  of  a 
notary  public  must  be  authenticated  by  his  official  seal — a  scrawl 

and  a  neglect  to  do  so  is  declared  a  misdemeanor.  (Code,  Sec.  2094. )  In  Mary- 
land, within  sixty  days.  (Code,  p.  469.)  The  longest  period  allowed  for  the 
deposit  of  the  notary's  records  is  in  New  Hampshire,  where  it  is  six  months. 
(Rev.  Stat.  p.  02.)  In  Oregon,  if  not  deposited  within  three  months,  there  is  a 
penalty  of  not  less  than  fifty  oiTmore  than  five  hundred  dollars.  (Gen.  Laws,  p. 
G89.)  The  penalty  for  a  failure  to  deposit  is  five  hundred  dollars  in  West  Vir- 
ginia. (Code  1868,  p.  386.) 

1  Rev.  Stat.  1874,  p.  722. 

2  The  requisites  of  a  notarial  seal  are  determined  by  the  law  of  the  place  from 
which  the  official  derives  his  authority.    An  official  seal  is  an  impression  on  the 
paper  directly,  or  on  wax  or  wafer  attached  thereto,  made  by  the  official  as  and 
for  his  seal.    In  the  absence  of  express  legislation,  an  official  seal  need  not  con- 
tain the  name  of  the  official.    It  is  the  seal,  and  not  its  composition  or  character 
of  words  and  devices,  which  raises  the  presumption  of  official  character  oi 
which  the  Courts  take  judicial  notice.    Any  impression  made  upon  sealing-wax 
or  wafer,  adhering  to  the  paper,  without  any  device  or  words  indicative  of  the 
particular  official,  is  entitled  to  judicial  sanction  as  evidence  of  the  official  char- 
acter of  the  individual  who  signs  the  jurat.    (In  re  Phillips,  Dist.  Ct.  U.  S.  14  X 
Bank.  R.  219.) 

8  Gage  v.  Dubuque  etc.  R.  Co.  11  Iowa,  310 


§    28  OFFICE   AND   DUTIES.  25 

is  not  sufficient.1  But  an  impression  of  the  notarial  seal,  made 
on  the  paper,  is  held  to  be  a  sufficient  sealing.2 

ARKANSAS.  —  Shall  have  the  emblems  of  the  great  seal  of 
State,  surrounded  by  the  words,  "Notary  Public,  County  of 
-  ,  Ark.";  and  all  acts  to  be  authenticated  therewith.3 

CALIFORNIA.  —  Arms  of  the  State,  the  words  "Notary  Public," 
and  the  name  of  county  for  which  commissioned.4 

DELAWARE.  —  After  the  1st  July,  1873,  the  impression  must 
shoAv  distinctly  name,  official  title,  date  of  appointment,  and 
term  of  office.5 

GEORGIA.  —  The  seal  shall  have  name  officially,  State,  and 
county.6 

ILLINOIS.  —  Shall  have  office  and  name  of  place  or  county  in 
which  the  notary  resides.7 

INDIANA.  —  Xo  notary  is  to  act  until  he  have  a  seal  on  which 
is  to  be  engraved  his  official  character,  to  which  may  be  added 
such  other  device  as  he  may  choose  ;  and  all  notarial  acts  not 
attested  by  such  seal  shall  be  void.8 

IOWA.  —  The  words  "  Notarial  Seal  "  and  "  Iowa,"  with  the 
surname  at  length,  and  at  least  the  initials  of  the  Christian 
name.9 

KANSAS.  —  Every  notary  shall  have  a  seal,  containing  his 
name  and  place  of  residence,  and  use  it  on  all  his  official  acts.10 

KENTUCKY.  —  There  is  no  special  provision  for  a  seal  in  this 
State  ;  but  it  has  been  decided  that  a  notary's  certificate  of  a 
protest  is  sufficient  without  a  seal,  and  is  conclusive.11 

LOUISIANA.  —  There  is  no  special  provision  ;  and  it  has  been 
held  that  a  notary  is  not  required  to  have  a  particular  style  of 
seal  to  give  authenticity  to  his  copies.12 


u.  Adams,  1  Ala.  527.    See  Hinckley  v.  O'Farrell,-4  Blackf.  185  ;  Du- 
mont  r.  McKracken,  6  Id.  356. 
i*Bank  of  Manchester  v.  Slason,  13  Vt.  334. 
3  Gantt's  Digest,  Sec.  2455. 
*  Political  Code,  Sec.  7SM. 
s  Rev.  Code  1874,  p.  147. 
6  Code  1873,  Sec.  1503. 

I  Rev.  Stat.  1874,  p.  721. 

8  1  G.  &  H.  445. 

9  Code  1873. 

10  Gen.  Stat.  1868,  p.  597. 

II  Bank  of  Kentucky  v.  Pursely,  3  T.  B.  Mon.  238;  Tyler  v.  Bank  of  Kentucky, 
7  Id.  557. 

12  Fleming  v.  Richardson,  13  La.  An.  414. 


26  OFFICE   AND    DUTIES.  §  28 

MAINE. — Name  and  words  "  Notary  Public,"  and  "  Maine," 
with  the  arms  of  the  State,  or  such  other  device  as  he  chooses.1 

MARYLAND. — Such  device  as  he  may  think  proper  ;  and  for 
legend  shall  have  name,  surname,  and  office  of  notary  and  place 
of  residence.2 

MINNESOTA. — Shall  have  arms  of  the  State,  the  words  "  No- 
tarial Seal,"  and  the  name  of  the  county  in  which  he  resides.3 

MISSISSIPPI. — Shall  have  "  Notary  Public  "  of (nam- 
ing town  or  city)  around  the  margin,  and  an  eagle  in  the  center. 
The  seal  is  to  be  delivered  to  his  successor.4 

MISSOURI. — Name,  surname  of  office,  and  name  of  the  county 
of  residence,  and  shall  use  the  seal  on  all  official  acts.6 

NEBRASKA. — The  words  "Notarial  Seal,"  the  name  of  the 
county  for  which  appointed,  and  the  word  "  Nebraska  "  ;  and  in 
addition,  at  his  option,  his  name,  or  the  initial  letters  of  his 
name.6 

NEVADA. — Each  notary  public  shall  provide  a  notarial  seal, 
an  impression  of  which  shall  be  made  on  his  official  bond,  on 
which  shall  be  engraved  the  name  of  the  county  for  which  he 
is  commissioned,  and  the  initials  of  the  Territory,  the  name  of 
the  notary,  and  the  words  "  Notary  Public."  7 

NEW  YORK. — There  is  no  special  provision  for.  By  Laws 
1859,  Chap.  360,  it  is  provided  that  notaries  can  administer  oaths 
and  affidavits,  take  proof  and  acknowledgments  of  deeds,  mort- 
gages, and  any  other  papers  for  use  or  record  in  this  State,  with- 
out affixing  their  official  seal. 

OHIO. — To  have  arms,  of  State,  the  words  "  Notarial  Seal," 
and  name  of  county.8 

PENNSYLVANIA. — To  have  arms  of  the  Commonwealth,  and 
for  a  legend,  name,  surname,  and  office,  and  the  place  of  resi- 
dence.9 

1  Rev.  Stat.  1871,  p.  327.    See  Homes  v.  Smith,  16  Me.  181,  holding  that  the 
record  need  not  be  under  seal— that  only  copies  are  required  to  have  a  seal. 
a  Gen.  Laws  1860,  p.  470. 
8  Bissell's  Stat.  p.  205. 
<  Act  April  5th,  1872. 

5  Wag.  Stat.  959. 

6  Gen.  Stat.  1873,  p.  496. 
*  Comp.  Laws,  Sec.  339. 

8  1  Swan  &  C.  876.    A  notary  cannot  take,  acknowledgment  of  certificate  of 
corporation.    (State  v.  Lee,  21  Ohio  St.  662.) 

9  Piirdon's  Digest,  p.  758. 


§  28  OFFICE   AND   DUTIES.  27 

SOUTH  CAROLINA. — "  That  every  notary  public  shall  have  a 
seal  of  office,  which  shall  be  affixed  to  his  instruments  of  pub- 
lication, and  to  his  protestations ;  but  the  absence  of  such  seal 
shall  not  render  his  acts  invalid,  provided  his  official  title  be  af 
Exed." * 

TENNESSEE. — Notary  to  procure  seal  at  his  own  expense, 
which  he  shall  surrender  to  the  County  Court  when  he  resigns, 
or  at  the  expiration  of  his  term  of  office,  and  which  his  repre- 
sentatives, in  case  of  his  death,  shall  likewise  surrender  to  be 
canceled,  on  pain  of  indictment  as  for  a  misdemeanor.2 

TEXAS. — Engraved  in  the  center  a  star  of  five  points,  and 

the  words,  "  Notary  Public,  County  of  ,  Texas,"  and  shall 

authenticate  all  his  official  acts  therewith.3 

VERMONT. — Each  shall  have  a  seal  of  office,  which  shall  be 
affixed  to  all  papers  officially  signed  by  him,  unless  specially  dis- 
pensed with  by  law.4 

WEST  VIRGINIA. — A  seal  need  not  be  affixed  to  acknowledg- 
ments of  deeds,  affidavits,  and  depositions,  if  the  signature  of 
the  notary  be  attached.5 

WISCONSIN. — Shall  have  an  impression  of  name,  office,  and 
county;  and  shall  deposit  an  impression  of  the  same  in  the 
office  of  the  Secretary  of  State.6 

!Rev.  Stat.  1873,  p.  113. 

2  Stat.  Thomp.  &  S.  Sec.  1802. 

apaschall's  Dig.  p.  789. 

No  notarial  act  is  valid  unless  the  seal  of  office  of  such  notary  be  affixed. 
(McKellar  v.  Peck,  39  Tex.  381.) 

4  Gen.  Stat.  1870,  p.  764. 

In  this  State  need  not  use  seal  in  taking  acknowledgments  of  deeds.  (Id.  p. 
148.) 

6  Code  1868,  p.  387. 

«1  Taylor's  Stat.  p.  283. 


28  ACKNOWLEDGMENT   OF   DEEDS.  §  29 


CHAPTER  IV 


§  29.  The  effect  of  acknowledgment. 

§  30.  A  literal  compliance  is  not  necessary. 

§  31.  Essential  of  certificate. 

§  32.  Identity  of  the  party. 

§  33.  Identity,  how  proved. 

§  34.  As  to  the  officer  taking  the  acknowledgment. 

§  35.  "Where  the  officer  is  a  party  in  interest. 

§  36.  A  deputy  can  take  the  acknowledgment. 

§  37.  Place  where  acknowledgment  made. 

§  38.  The  necessity  of  a  seal. 

§  39.  Certificate  of  probate  of  deeds. 

ACKNOWLEDGMENT  BY  MARRIED  WOMEN. 

§  40.  Theory  of  the  law  in  respect  to. 

§  41.  Requisites  of  the  certificate. 

§  42.  As  to  the  exact  compliance  with  requirements. 

§  43.  A  private  examination. 

§  44.  The  wife  must  be  made  acquainted  with  contents. 

§  45.  The  certificate  must  state  a  voluntary,  free  act. 

§  46.  That  she  does  not  wish  to  retract  her  act. 

§  47.  Effect  of  the  certificate  against  the  wife. 

§  48.  Liability  of  notary  for  invalid  acknowledgment. 

§  49.  Statutory  provisions  in  reference  to  acknowledgments 

§  29.  The  effect  of  acknowledgment  is  to  give  a  right 
to  introduce  the  deed  in  evidence,  as  proof  of  a  conveyance, 
and  to  give  constructive  notice  to  all  who  subsequently  acquire 
the  property,  or  any  interest  therein,  of  the  prior  sale  or  incum- 
brance.1  So,  where  the  word  "  acknowledged  "  was  omitted  in 
the  certificate,  it  was  held  that  the  omission  could  not  be  sup- 
plied by  intendment  or  construction,  and  that  the  deed,  having 
no  acknowledgment,  could  not  be  introduced  as  evidence  of 
title;2  and  a  defect  like  this  could  not  be  supplied  by  parol 

1Keichline  v.  Keichline,  54  Penn.  St.  75;  Bowman  v.  Wettig,  39  111.  416;  Har- 
rington v.  Fish,  10  Mich.  415;  Pickney  v.  Burrage,  17  N.  J.  Eq.  13;  Jackson  v, 
Shepard,  2  Johns.  77 ;  Kelly  v.  Dunlap,  3  Penn.  St.  136. 

2  Stanton  v.  Button,  7  Conn.  527.  See  Short  v.  Coulee,  28  111.  219:  Bootliroyd  v. 
Engles,  23  Mich.  19. 


§§  30-31  ACKNOWLEDGMENT    OF    DEEDS.  29 

evidence.1  But  a  deed  which  is  not  acknowledged,  or  which  is 
improperly  acknowledged,  is  nevertheless  good  as  between  the 
parties,  and  between  them  may  be  received  in  evidence.2  So  it 
is  held  that  although  a  deed  is  defective  as  to  acknowledgment, 
to  as  not  to  be  entitled  to  registration,  it  is  not  void  but  good  as 
between  the  parties,  and  as  to  all  the  world,  except  subsequent 
purchasers  without  notice,  and  it  should  be  allowed  in  evidence, 
with  instructions  to  the  jury  as  to  its  effect  in  giving  notice.3 

§  30.  A  literal  compliance  is  not  necessary  with  the 
words  of  the  statute  ;  a  substantial  compliance,  however,  must  be 
found  in  the  certificate.4  Important  words  omitted  from  the  cer- 
tificate will  be  fatal  to  its  validity,  and  cannot  be  supplied  by 
intendment,  as  where  the  words  "for  the  consideration  and  pur- 
poses therein  set  forth  "  prescribed  by  the  statute  are  omitted.5 
Thus,  where  the  statute  provides  that  the  certificate  of  a  judge 
of  a  foreign  State  must  set  forth  that  the  person  executing  a 
power  of  attorney  is  "  personally  known  "  to  said  judge,  the 
words  "  I  am  satisfied  "  will  not  be  held  sufficient.6  A  deed  ac- 
knowledged before  a  proper  officer,  who  certified  .that  the 
grantors  acknowledged  the  same  "  to  be  their  act  and  deed  for 
the  uses  and  purposes  therein  mentioned,"  instead  of  using  the 
language  of  the  statute,  that  "  they  signed,  sealed,  and  deliv- 
ered," etc.,  was  held  entitled  to  admission  in  evidence.7 

§  31.  Essentials  of  certificate. — There  are  two  essential 
things  required  in  a  certificate  of  acknowledgment  everywhere, 
and  an  omission  of  either  will  render  the  certificate  invalid. 
These  are  the  fact  of  acknowledgment,  and  the  identity  of  the 
party  making  the  acknowledgment.8  The  party  who  executes 
a  deed  must  acknowledge  it  to  the  officer  to  be  his  deed,  eithei 

1  Hayden  v.  Westcott,  11  Conn.  129;  O'Farrell  v.  Simplot,  4  Iowa,  381;  Gray  v 
Ulricli,  8  Kan.  112. 

2  Strong  v.  Smith,  3  McLean,  362  ;  Beaman  v.  Whitney,  22  Me.  413  ;  Brown  \, 
Manter,  23  K  H.  408;  Gibbs  v.  Swift,  12  Gush.  393;  Hill  r.  Samuel,  21  Miss.  307. 

3  Hastings  v.  Vaughn,  5  Cal.  315. 

4  Henderson  v.  Grewell,  8  Cal.  581  ;  Alexander  v.  Merry,  9  Mo.  514  ;  Morse  v 
Clayton,  21  Miss.  373  ;  Vance  v.  Schuyler,  6  III.  160 ;  Monroe  v.  Arledge,  23  Tex 
478. 

5  Jacoway  v.  Gault,  20  Ark.  190. 
c  Shephard  v.  Carriol,  19  111.  313. 

?  Den  v.  Hamilton,  12  K  J.  L.  109. 
*  Bryan  v.  Ramirez,  8  Cal.  461. 


30  ACKNOWLEDGMENT   OF    DEEDS.  §  32 

by  the  use  of  that  word,  or  some  other  word  equivalent  to  it,  or 
the  certificate  will  be  invalid.1  This  acknowledgment  must  ap- 
pear upon  the  certificate,  and  cannot  be  proved  by  parol  evi- 
dence.2 

In  most  places,  the  fact  of  acknowledgment  shows  the  act  to 
be  the  free  and  voluntary  act  of  the  persons  making  it ;  and 
this  is  the  import  of  the  term,3  but  in  Iowa  this  is  otherwise 
held,  and  there  the  certificate  must  show  on  its  face  that  it  was 
the  "  voluntary  "  deed  of  the  grantor.4  It  is  not  sufficient  to 
state  that  the  party  acknowledged  according  to  law  :  the  partic- 
ulars must  appear  from  the  certificate.5 

§  32.  Identity  of  the  party. — This  is  the  most  essential 
part  of  the  certificate  ;  it  is  for  the  purpose  of  guarding  against 
fraud  that  the  certificate  of  the  notary  is  required;  and  for 
this  reason  the  certificate  is  looked  to  as  the  fullest  and  most 
satisfactory  evidence  of  identity.  Hence,  a  certificate  which 
omits  to  state  that  the  party  acknowledging  was  personally 
known,  or  proven,  is  worthless.6 

It  must  appear  that  it  was  the  grantor  who  appeared  and  made 
the  acknowledgment.  So  where  a  certificate  was  in  these 
words  :  "  Personally  appeared ,  and  acknowledged  this  in- 
strument to  be  his  free  act  and  deed,"  it  was  held  that  the 
certificate  did  not  impart  an  acknowledgment  by  the  grantor.7 

An  omission  of  the  word  "  personally "  before  the  word 
"  known,"  has  in  some  States  been  held  immaterial.8  So  it  has 
been  held,  in  New  York,  that  a  certificate  that  the  party  or  sub- 
scribing witness  was  known  to  the  officer,  sufficiently  imports 
that  the  officer  was  personally  acquainted  with  him,  and  it  is 
not  there  necessary  that  the  precise  language  of  the  statute 
should  be  used.9 

1  Short  v.  Conlee,  28  HI.  219. 

2  Pendleton  v.  Button,  3  Conn.  408. 
8  Henderson  v.  Grewell.  8  Cal.  581. 

4  Wickersham  v.  Reeves,  1  Iowa,  413;  Newman  v.  Samuels,  17  Id.  528. 

6  Flanagan  v.  Young,  2  Har.  &  M.  38;  Gill  v.  Fauntleroy,  8  B.  Mon.  177. 
6Fogarty  v.  Finlay,  10  Cal.  239;  Tully  v.  Davis,  30  111.  103;  Brinton  v.  Seevers, 

12  Iowa,  389;  Garnett  v.  Stockton,  7  Humph.  84. 

7  Hayden  v.  Westcott,  11  Conn.  129. 

8Rosenthal  v.  Griffin,  23  Iowa,  263;  Alexander  v.  Merry,  9  Mo.  514;  "Warner  v. 
Hardy,  GMd.  525;  West  Point  Iron  Co.  v.  Reymert,  45  N.  Y.  703. 

0  Sheldon  v.  Stryker,  42  Barb.  284;  Thurman  v.  Cameron,  24  Wend.  87;  Jackson 
v.  Gumaer,  2  Cow.  552. 


§§  33-34  ACKNOWLEDGMENT    OF    DEEDS.  31 

Where,  in  an  acknowledgment  of  a  mortgage,  the  word 
"  appeared "  was  omitted  after  the  phrase,  "  before  me  person- 
ally," it  was  held  that  the  omission  was  manifestly  a  clerical 
error,  and  not  fatal  to  its  validity.1  But  it  must  appear  that 
the  party  acknowledging  was  known  or  proved  to  be  the  party 
who  signed  and  executed  the  instrument.  Thus,  an  acknowl- 
edgment :  "  Personally  appeared  before  me  E,  S  L,  signer  and 
sealer  of  the  foregoing  instrument,  and  acknowledged  the  same 
to  be  his  free  act  and  deed  before  me,"  is  insufficient.2  And  a 
certificate  stating  that  A  B,  "  the  party  grantor  of  the  within 
instrument,  personally  appeared,"  etc.,  and  that  "  at  the  same 
time  personally  appeared  C  B,  wife  of  said  A  B,  and,"  etc.,  is 
not  a  substantial  compliance  with  the  requirement  of  the  law 
that  the  grantor  or  grantors  were  personally  known,  or  their 
identity  satisfactorily  proved  to  the  officer  making  the  certifi- 
cate, and  that  such  facts  should  be  stated  therein.3 

§  33.  Identity,  how  proved. — In  most  of  our  statutes,  it  is 
provided,  where  a  person  is  unknown  to  the  officer,  how  his 
identity  must  be  made  to  appear.  It  is  required  generally  to 
be  on  the  oath  of  a  certain  person  named  in  the  certificate. 

The  mere  introduction  at  the  time  of  a  person  appearing 
before  an  officer  for  the  purpose  of  acknowledging  the  execution 
of  an  instrument,  is  not  sufficient ;  legal  proof  of  his  identity  is 
necessary,  where  the  officer  has  no  previous  knowledge  of  the 
person,  and  such  proof  should  be  satisfactory  evidence  under 
oath.4 

§  34.  As  to  the  officer  taking  the  acknowledgment,  it 
must  appear  Avhat  his  character  is,  but  it  is  not  necessary  that 
it  should  be  stated  that  he  is  authorized  to  take  the  acknowledg- 
ment of  deeds  where  it  appears  from  the  public  laws  of  the 

1  Scharf  enburg  v.  Bishop,  35  Iowa,  GO. 

2Stuller  v.  Link,  2  X.  Y.  Supreme  C.  R.  Thorn.  &  0.  86. 

3  Smith  r.  Garden,  23  "Wis.  G85.  See  Callaway  v.  Fash,  50  Mo.  420.  A  defect 
in  the  acknowledgment  of  a  sheriff's  deed,  in  which  the  person  before  whom  it 
was  acknowledged  failed  to  state  that  "the  sheriff  was  personally  known  to 
him,"  does  not  invalidate.  Ogden  v.  Walters,  12  Kan.  282. 

4, Tones  v.  Bach,  48  Barb.  568.  If  a  wife  be  introduced  to  the  officer  by  her 
husband  in  the  presence  of  her  brother,  both  of  whom  are  known  to  the  officer, 
it  is  sufficient  personal  knowledge.  Rexford  v.  Rexford,  7  Lans.  G. 


32  ACKNOWLEDGMENT  OF   DEEDS.  g  34 

State  that  such  officer  is  authorized  to  take  acknowledgments.1 
But  when  a  certificate  from  another  country  or  State  is  intro- 
duced, signed  by  a  certain  officer  in  his  official  character,  it  must 
appear,  before  it  can  be  admitted  in  evidence  or  to  record,  that 
such  officer  is  authorized  to  take  acknowledgments.2 

It  has  been  held,  in  Pennsylvania,  that  the  office  of  a  person 
taking  the  acknowledgment  of  a  deed,  if  not  appearing  in  the 
certificate,  may  be  proved  aliunde.3  It  is  very  doubtful  if  this 
would  be  held  elsewhere:  the  deed  ought  not  to  be  entitled 
to  registration  when  so  signed.  But  an  acknowledgment  of 
a  deed  before  a  person  who  styles  himself  a  justice  of  the 
Court  of  Common  Pleas,  is  prima  facie  evidence  that  he  was 
such ;  and  it  is  not  necessary  to  produce  the  commission  of 
the  justice  until  some  evidence  is  given  to  render  the  fact 
doubtful.4 

In  Wisconsin,  the  question  of  presumption  as  to  the  authority 
of  an  officer  to  take  acknowledgments,  was  lately  considered  in 
Eaton  v.  Woydt.5  A  deed  was  introduced,  purporting  to  be  ac- 
knowledged before  an  officer  styling  himself  a  justice  of  the  peace 
in  New  York,  and  accompanying  it  was  the  certificate  of  the  clerk 
of  the  city  and  county  of  New  York,  certifying  that  the  person 
was  a  justice  of  the  peace,  and  that  the  signature  of  such  person 
was  genuine.  By  statute  in  Wisconsin,  this  would  be  prima  facie 
evidence  of  the  capacity  of  the  person  to  take  acknowledg- 
ments ;  but  it  was  shown,  by  the  person  who  claimed  adversely 
to  the  deed,  that  by  the  laws  of  New  York,  of  1828,  justices  of 
the  peace  had  no  authority  to  take  acknowledgments  of  deeds, 
and  the  authority  was  only  conferred  in  1840.  The  Court  held 
that  this  evidence  created  a  presumption  that  they  did  not  pos- 
sess the  authority  in  1835. 

A  commissioner  appointed  by  the  governor  of  a  State  to  take 
the  acknowledgment  of  deeds,  etc.,  in  another  State,  is  an  offi- 
cer of  the  State  from  which  he  derives  his  appointment. 
The  Courts  of  that  State  are  bound  to  take  judicial  otice  of  his 
acts,  and  these  require  no  other  authentication  than  his  seal  of 

1  Johnston  v.  Haines,  2  Ohio,  55  ;  Livingston  v.  McDonald,  9  Ohio,  1G8. 

-  Do  Segond  v.  Culver,  10  Ohio,  188. 

s  Bennet  v.  Paine,  7  Watts,  334  ;  Scott  v.  Gallagher,  11  S.  &  K.  347. 

*  Willink  v.  Miles,  Pet.  C.  C.  429. 

s.  277. 


§§  35-37  ACKNOWLEDGMENT    OF    DEEDS.  33 

office.1  So,  by  the  laws  of  Pennsylvania,  a  commissioner's  cer- 
tificate is  made  presumptive  evidence  of  the  execution  and  ac- 
knowledgment of  a  deed  out  of  the  State.2 

o 

It  will  be  sufficient  if  the  officer  taking  the  acknowledgment 
is  an  officer  de  facto,  who  is  authorized  to  take  acknowledg- 
ments by  virtue  of  his  office.3 

The  officer  must  subscribe  his  name  to  the  acknowledgment; 
it  will  not  be  sufficient  if  it  appear  in  the  body  of  the  certificate.4 

§  35.  Where  the  officer  is  a  party  in  interest,  he  cannot 
take  the  acknowledgment.  Thus,  where  the  instrument  shows 

O  * 

upon  its  face  that  the  acknowledgment  was  taken  by  a  party  in 
interest,  it  is  improperly  recorded,  and  is  no  constructive  notice.5 
And  where  a  trustee  took  the  acknowledgment  of  the  grantors 
in  the  deed  of  trust,  it  was  held  he  was  disqualified,  and  it  was 
declared  an  invalid  acknowledgment.6  A  person  cannot  take 
the  acknowledgment  of  a  deed  to  himself  or  for  his  use.7  But 
it  may  be  taken  by  an  officer  who  is  related  to  the  parties.8 

§  36.   A  deputy  can  take  the  acknowledgment,  in  the 

absence  of  the  principal  clerk.9  A  deputy  recorder  has  author- 
ity to  take  an  acknowledgment  of  a  deed  and  certify  it  in  the 
name  and  as  the  act  of  his  principal.10  A  deputy  clerk  of  a 
Probate  Court  of  Mississippi  is  competent  to  receive  the  ac- 
knowledgment of  a  deed,  and  it  is  not  necessary  that  his  certifi- 
cate purport  to  be  that  of  the  principal  clerk,  "  by  his  deputy."  u 

§  37.  Place  -where  acknowledgment  made. — There  is  a 
difference  in  the  decisions  as  to  the  place  appearing  in  the  cer- 
tificate where  the  acknowledgment  is  made.  This  arises  from 

1  Smith  v.  Van  Gilder,  26  Ark.  527  ;  S.  P.  Vance  v.  Schuyler,  G  111.  160. 

2  Hultz  v.  Ackley,  63  Penn.  St.  142. 

8  Hamilton  v.  Pitcher,  53  Mo.  334  ;  "Woodruff  v.  McHarry,  56  HI.  218  ;  Brown 
v.  Lunt,  37  Me.  423. 
4  Marston  v.  Brashaw,  18  Mich.  81. 

6  Stevens  v.  Hampton,  40  Mo.  404  ;  "Wilson  v.  Traer,  20  Iowa,  231. 
6  Bo\vne  v.  Moore,  38  Tex.  645. 
~  Groesbeck  v.  Seeley,  13  Mich.  320  :  Beaman  v.  "Whitney,  22  Me.  413. 

8  Lynch  v.  Livingston,  6  N.  Y.  422. 

9  Abrams  v.  Erwin,  9  Iowa,  87  ;  Kemp  v.  Porter,  7  Ala.  138  ;  Hope  v.  Sawyer. 
14  111.  254  ;  Gibbons  v.  Gentry,  20  Mo.  468. 

"  Muller  v.  Boggs,  25  Cal.  175. 

11  McCraven  v.  McGuire,  23  Miss.  100. 

NOTARIES — 3. 


34  ACKNOWLEDGMENT   OF   DEEDS.  §  37 

the  statutes  in  some  States  giving  a  limited  jurisdiction  to  cer- 
tain officers.  This  was  before  adverted  to,  when  the  jurisdic- 
tion of  notaries  was  considered.1  Where  the  officer  has  a  local 
jurisdiction,  and  acts  out  of  it,  his  certificate  is  worthless ;  but 
though  notaries  be  appointed  for  towns  or  cities,  they  are  gen- 
erally county  officers,  and  can  act  throughout  the  limits  of  their 
county.2  A  certificate  of  acknowledgment  must  contain  some 
assignable  locality,  which  the  Court  can  judicially  notice,  to 
render  the  deed  admissible  in  evidence,  without  proof  of  its 
execution,  and  a  notarial  seal  will  not  cure  a  defect  in  this  re- 
spect.3 

It  would  not  be  a  valid  certificate  if  the  locality  did  not  appear, 
either  in  the  caption,  or  by  the  signature  of  the  officer  subscrib- 
ing.4 Thus,  in  Chiniquy  v.  Bishop  of  Chicago,5  the  certificate 
purported  to  have  been  made  by  the  clerk  of  the  County 
Court,  and  was  formal  in  all  respects,  except  in  the  omission,  in 
the  caption  or  margin,  of  the  name  of  the  county.  The  certifi- 
cate concluded :  "  Given  under  my  hand  and  seal  of  said  Court, 
this  12th  day  of  July,  A.  D.  1851,"  with  the  delineation  of  a 
seal  containing  the  words,  "  "Will  County  Seal."  It  was  held 
that  the  omission  of  the  name  of  the  county  in  the  caption  was 
a  mere  informality  which  did  not  vitiate  the  certificate,  it  ap- 
pearing sufficiently  that  the  acknowledgment  was  taken  by  a 
proper  officer  of  Will  County. 

In  another  case  in  that  State  c  it  has  been  held  that  when  a 
justice  of  the  peace  subscribed  his  name  to  an  acknowledgment, 
and  there  did  not  -appear  from  the  certificate  any  county  of 
which  he  was  a  justice,* the  certificate  was  not  on  this  account 
defective.  The  Court,  it  was  held,  would  take  judicial  cogni- 
zance of  who  were  justices  of  the  peace  in  the  county  where 
the  Court  sat.  This  decision  seems  to  be  of  doubtful  authority, 
and  would  not  be  followed  generally.  In  Iowa,  a  certificate  was 
not  considered  valid,  because  it  failed  to  show  the  county  of  the 
notary  before  whom  the  acknowledgment  was  taken,  although 
the  seal  had  on  it  "  Marshall  County."  It  was  held  that  the 
seal  did  not  supply  the  defect.  The  Court  say :  "  The  title  of 

1  See  Sec.  22.  •*  Brooks  v.  Chaplin,  3  Vt.  281. 

2  Hill  v.  Bacon,  43  111.  477.  «  41  111.  148. 

8  Vance  v.  Schuyler,  0  111.  100.  «  Graham  v.  Anderson,  42  111.  514. 


§  38  ACKNOWLEDGMENT    OF    DEEDS.  35 

the  officer  is  required  to  be  set  out  in  the  certificate ;  the  seal  is 
no  part  thereof.  It  is  not  used  to  correct  defects  in  the  instru- 
ment to  which  it  is  affixed,  but  to  give  solemnity  to,  and  au- 
thenticate it."  l 

When  the  grantor  in  a  deed  is  described  as  a  resident  of 
Windham  County,  Connecticut,  and  the  county  is  named  in  the 
caption  of  the  certificate,  it  will  be  presumed  that  the  justice 
who  took  the  acknowledgment  was  such,  and  acted  in  that 
county.2 

Where  a  certificate  was  entitled  simply  "  County  of  New 
York,"  it  was  insufficient,  for  failing  to  show  the  State  in  which 
the  act  was  done  ;  but  the  defect  was  cured  by  the  certificate  of 
the  county  clerk,  that  the  commissioner  was  duly  commissioned 
for  the  city,  county,  and  State  of  New  York,  residing  in  the 
county,  and  duly  qualified.3 

A  notary  public  is  authorized  to  take  the  proofs  and  acknowl- 
edgment of  deeds  in  a  county  for  which  he  is  commissioned, 
although  the  land  conveyed  is  situated  in  another  county.4  In 
Mississippi,  before  1836,  the  acknowledgment  should  be  made 
before  a  justice  of  the  county  where  the  whole,  or  part,  of  the 
land  is  situated.5  Now,  by  the  statute,  this  is  not  necessary.6 

§  38.  The  necessity  of  a  seal. — In  general,  a  certificate  of 
acknowledgment  should  be  under  the  seal  of  the  officer  certify- 
ing it,  unless  there  are  exceptions  in  the  statutes,  as  there  are  in 
a  few  of  our  States.7  But  there  is  scarcely  any  exception  when 
the  certificate  is  given  in  one  State  to  be  used  in  another.  Thus, 
it  is  held,  in  California,  that  the  statute  requires  the  seal  of  the 

1  "Willard  v.  Cramer,  3G  Iowa,  22. 

2  Dunlap  v.  Daugherty,  20  111.  397. 
8  Hardin  v.  Osborne,  GO  111.  93. 

*  Johnson  v.  McGehee,  1  Ala.  1G8. 

o  Hughes  v.  "Wilkinson,  37  Miss.  482. 

6  See  Sec.  49  for  the  statutory  provisions. 

A  justice  may,  in  his  own  county,  acknowledge  a  deed  of  land  in  another 
county.  Colton  v.  Seavey,  22  Gal.  490. 

In  Massachusetts,  under  the  statute,  the  acknowledgment  of  a  deed  may  be 
made  before  any  justice  of  the  peace  in  the  State :  therefore,  an  acknowledg- 
ment taken  by  a  justice  out  of  the  county  for  which  he  was  commissioned,  is 
valid.  Learned  v.  Riley,  14  Allen,  109.  See,  to  the  same  point,  Crumbaugh  ». 
Kugler,  2  Ohio  St.  373. 

7'See,  as  to  the  notarial  seal,  Sec.  28. 


36  ACKNOWLEDGMENT   OF   DEEDS.  §  38 

officer  taking  the  acknowledgment,  as  a  preliminary  to  the  fit- 
ness of  the  deed  for  registration,  and  without  conforming  strictly 
to  it,  the  registration  will  not  be  constructive  notice.1  Under 
the  Act  of  1850,  the  acknowledgment  of  a  notary,  taken  under 
his  private  seal,  was  held  valid  when  it  was  stated  in  the  instru- 
ment that  he  had  no  public  seal,2  but  under  the  present  law  he 
can  only  authenticate  with  his  official  seal. 

So  it  is  held,  in  HlhiQis,  that  an  acknowledgment  of  a  deed  by 
a  notary,  not  attested  by  a  seal,  is  invalid ; 3  and  a  certificate  of 
acknowledgment  to  a  deed,  made  in  another  State,  of  lands  in 
Illinois,  must  be  under  the  seal  of  the  Court.  A  scroll,  and  the 
certificate  of  the  clerk  that  the  seal  has  been  lost,  will  not  sup- 
ply its  place.4  This  is  probably  too  strict  a  rule  under  the  cir- 
cumstances. Thus,  it  was  decided  in  Kentucky,  under  the  Act 
of  1831,  which  required  that  a  non-resident's  deed  should  be 
acknowledged,  etc.,  with  a  certificate  of  the  clerk  of  the  Court, 
etc.,  "  with  the  seal  of  his  office  annexed,"  that  any  seal  that  the 
clerk  was  accustomed  to  use  on  such  occasions  might  be  deemed 
his  seal  of  office,  though  described  in  the  certificate  as  "his 
private  seal  (no  seal  of  the  office  being  yet  provided").5 

A  notary's  certificate,  which  declares  that  he  has  affixed  his 
official  seal,  etc.,  is  defective  without  it ; 6  but  the  omission  in 
the  certificate  of  acknowledgment  of  the  word  "  seal,"  between 
"  and  "  and  "  of  office  "  is  immaterial.7 

In  Massachusetts,  the  statute  provides  that  deeds  of  real 
estate  may  be  acknowledged  "  before  any  justice  of  the  peace 
in  this  State,  or  before  finy  justice  of  the  peace,  magistrate,  or 
notary  public,  within  the  United  States,  or  in  any  foreign 
country."  Under  this,  it  was  decided,  in  Farnum  v.  Buffum,8 
that  a  certificate  made  by  a  notary  public  of  Rhode  Island  need 
not  be  under  seal,  as  this  statute  made  no  mention  of  a  seal.  I 
would  not  regard  this  case  as  good  authority — it  would  not  be 

i  Hastings  t;.  Vaughn,  5  Cal.  315.    See  Miller  v.  Henshaw,  4  Dana,  (Ky.)  325. 
SFogarty  v.  Sawyer,  23  Cal.  570.    See  Mason  v.  Brock,  12  111.  273. 
»  Booth  v.  Cook,  20  111.  129. 

4  Skinner  v.  Fulton,  39  111.  484. 

5  Collins  v.  Boyd,  5  Dana,  316. 
«  Ballard  v.  Perry,  28  Tex.  347. 

7  Nichols  v.  Stewart,  15  Tex.  226. 
84Cush.  264. 


§  39  ACKNOWLEDGMENT    OF    DEEDS.  37 

accepted  elsewhere ;  it  may,  however,  be  followed  in  Massachu- 
setts. 1 

§  39.  Certificate  of  probate  of  deeds. — When  the  grantor 
fails  to  acknowledge  a  deed  or  instrument,  the  statutes  provide 
for  subsequent  proof  of  its  execution  and  delivery  before  certain 
officers  authorized  to  take  the  acknowledgment  of  deeds,  and  this 
subsequent  proof  is  called  the  probate,  etc.  In  general,  one  of 
the  two  subscribing  witnesses  is  required  to  make  this  proof, 
and  the  officer  usually  certifies  that  he  either  knew  the  witness 
or  had  satisfactory  evidence  of  his  identity.2  But  it  has  been 
held  that  the  certificate  need  not  state  that  the  officer  knew  the 
witness :  it  will  be  presumed  that  he  had  satisfactory  evidence  of 
his  identity.3 

The  certificate  of  probate  must  state  that  the  witness  saw  the 
grantor  execute  and  deliver  the  instrument,  and  that  he  knew 
the  grantor,  and  saw  the  other  subscribing  witness  attest  it.4 
A  probate  stating  that  the  witness  "  testified  that  he  saw  the 
within  grantor  sign  the  same,"  without  adding  that  he  knew  him, 
is  insufficient.5 

A  deed  was  proved  before  the  clerk  of  a  County  Court  of 
North  Carolina,  who  wrote  opposite  the  witness'  name  the  word 
"  Jurat,"  and  swore  that  the  witness  proved  the  deed.  It  was 
held  that  this  was  a  sufficient  compliance  with  the  statute  of 
that  State,  to  authorize  the  registration  of  the  deed.6 

1  In  Ohio,  the  officer  need  not  affix  his  seal.    Fund  Commissioners  v.  Glass,  17 
Ohio,  542.    So  in  Minnesota.  Thompson  v.  Morgan,   6  Minn.  292.    Under  the 
present  statute  of  Ohio,  it  would  seem  that  a  seal  is  required.    See  1  Vol.  Swan 
&  C.'s  Stat.  p.  87G. 

2  See  forms  given  in  Appendix. 

3  Wood  r.  Harrow,  HJohns.  434;  Parker  v.  Phillips,  9  Cow.  94;  Kellogg  ». 
Vickory,  1  Wend.  408;  Johnson  v.  Prewitt,  32  Mo.  553. 

-»  Norman  v.  Wells,  17  Wend.  13G;  Delauney  v.  Burnett,  9  111.454;  Green  r. 
Glass,  29  Geo.  24G;  Doe  v.  Lewis,  Id.  45. 

sGibbs  v.  Osborn,  2  Wend.  555;  Gillet  v.  Stanley,  1  Hill,  121. 

°Starke  v.  Etheridge,  71  N.  C.  243.  The  statute  under  which  this  decision  was 
given  reads:  "All  deeds,  etc.,  required  or  allowed  to  be  registered,  may  be  ad- 
mitted to  registration  in  the  proper  county,  upon  being  acknowledged  by  the 
grantor,  or  proved  on  oath,  before  the  judge,  etc.,  or  before  the  clerk  of  such 
county,  or  his  deputy." 


38  ACKNOWLEDGMENT   OF   DEEDS.  §§  40-42 


ACKNOWLEDGMENT  BY  MARRIED  WOMEN. 

§  40.  Theory  of  the  law  in  respect  to. — The  dependent 
position  of  married  women,  according  to  the  theory  of  the  law, 
is  plainly  shown  in  the  statutory  requirements  regarding  an 
acknowledgment  by  a  married  woman.  The  common  law  re- 
garded the  woman  as  sub  potestate  viri,  and  therefore  it  pro- 
vided for  a  separate  examination  of  the  wife,  apart  from  the 
husband,  and  required  her  to  state  that  her  act  was  free  and 
voluntary. 

It  is  thus  stated  by  Coke :  "  The  examination  of  afeme  covert 
ought  to  be  secret ;  and  the  effect  is  to  examine  her  whether 
she  be  content  to  levie  a  fine  of  such  lands  (naming  them  par- 
ticularly and  distinctly,  and  the  estate  that  passeth  by  the  fine) 
of  her  own  voluntary  free  will,  and  not  by  threats,  menaces,  or 
any  compulsorie  means."  1 

Though  fines  and  recoveries  were  abolished  in  England  by 
the  Statute  3  and  4  Will.  IV,  Chap.  74,  yet  it  is  provided  by 
the  same  statute  that  the  deed  of  a  married  woman  must  be 
acknowledged  on  a  separate  examination.  In  a  great  many  of 
our  States  this  is  required  still,  and  in  the  section  at  the  end  of 
this  chapter  will  be  found  the  provisions  of  the  statutes  of  the 
various  States,  showing  where  this  examination  is  required. 

§  41.  Requisites  of  the  certificate. — In  some  States  there 
are  peculiar  requirements,  which  will  be  found  in  the  forms  in 
the  Appendix ;  but  as  a'^ule  the  following  are  the  substantial 
requisites  :  1.  The  wife  must  be  taken  apart  from  the  presence 
and  hearing  of  the  husband.  2.  She  must  be  made  aware  of  the 
contents  of  the  instrument.  3.  She  must  acknowledge  that  she 
freely  and  voluntarily  signed  and  executed  it,  without  any  fear 
or  compulsion  of  her  husband.  4.  That  she  does  net  wish  to 
retract  the  act,  or,  as  some  require,  that  she  desires  the  in- 
strument to  be  recorded  as  her  act  and  deed. 

§  42.  As  to  the  exact  compliance  with  these  require- 
ments, there  is  very  little  doubt  in  the  decisions.  The  Courts 
insist  upon  a  close  and  rigid  adherence  to  the  provisions  of  the 

l  Co.  Litt.  353a. 


§    42  ACKNOWLEDGMENT    OF    DEEDS.  39 

statute ;  and  though  a  literal  compliance  may  not  be  exacted, 
still  it  must  appear  from  the  certificate  that  the  "prescribed 
form  was  substantially  observed.  So  it  is  held  that  the  certifi- 
cate of  the  acknowledgment  of  a  married  woman  of  her  execution 
of  a  deed  must  show,  by  the  facts  stated  therein,  that  she  has 
been  examined  in  the  manner  prescribed  by  the  statute,  or  the 
deed  as  to  her  will  not  be  valid.1 

The  cases  on  this  point  differ  in  two  respects.  Some  hold  a 
strict  compliance  with  the  terms  of  the  statute  essential,  and 
admit  nothing  by  way  of  construction  or  inference  ;  while  others 
look  more  to  a  substantial  compliance,  giving  a  fair  construction 
to  the  language,  which  they  hold  need  not  be  in  ipsissimus 
verbis  of  the  statute,  and  that  words  of  synonymous  import  will 
be  sufficient. 

Thus,  in  Hollingsworth  v.  McDonald,2  the  Court  say :  "  That 
the  acknowledgment  is  substantially  defective,  the  word  '  fear  ' 
being  omitted  in  the  certificate  of  the  acknowledgment,  and  no 
word  of  similar  import  or  meaning  substituted  in  its  place." 
So,  in  Mclntire  -y.  Ward,3  it  was  adjudged  not  to  be  essential  for 
the  officer  taking  the  acknowledgment  to  use  the  words  of  the 
statute  in  his  certificate  ;  but  that  it  was  sufficient  if  the  di- 
rections of  the  statute  were  substantially  followed.4 

In  New  York,  where  the  statute  requires  the  officer  before 
whom  the  acknowledgment  of  the  deed  of  a  married  woman  is 
taken,  to  certify  that,  on  "  a  private  examination  apart  from  her 
husband,  she  executed  such  conveyance  freely,  and  without  any 
fear  or  compulsion  of  her  husband,"  a  certificate  that,  on  an  exami- 
nation, "  separate  and  apart  from  her  husband,  she  acknowledged 
the  execution  of  the  same  without  fear  or  compulsion  from 
him,"  was  held  a  sufficient  compliance  with  the  statute.5  The 
correct  view,  it  would  seem,  is,  that  while  the  language  of  the 

1  Jordan  v.  Corey,  2  Ind.  385;  Lewis  v.  Waters,  3  Har.  &  McH.  430;  iNantz  v. 
Bailey,  3  Dana,   111;  Blackburne  v.  Pennington,  8  B.  Mon.  217;  Meddock  v. 
Williams,  12  Ohio,  377;  Ward  v.  Mclntosh,  12  Ohio  St.  231;  Garrett  v.  Moss,  22 
111.  3G3;  Gove  v.  Gather,  23  111.  G34;  McBryde  v.  Wilkinson,  29  Ala.  662. 

2  2  Har.  &  J.  230. 

3  5  Binn.  296. 

4  To  the  same  point,  Brown  t'.  Farran,  3  Ohio,  140  ;  Barton  v.  Morris,  15  Ohio, 
408  ;  Owen  r.  Norris,  5  Blackf.  479  ;  Hughes  v.  Lane,  11  111.  123  ;  Bell  v.  Evans, 
10  Iowa,  353  ;  Dickerson  v.  Davis,  12  Iowa,  353  ;  Dundas  v.  Hitchcock,  12  How. 
U.  S.  258  ;  Goode  v.  Smith,  13  Cal.  81 ;  Stuart  v.  Dutton,  39  HI.  91. 

5  Dennis  v.  Tarpenny,  20  Barb.  371. 


40  ACKNOWLEDGMENT   OF   DEEDS.  §  43 

statute  need  not  be  literally  followed,  yet  every  fact  required 
must  be  stated  in  the  certificate,  either  by  words  of  equivalent 
import,  or  in  such  a  clear,  unmistakable  manner  that  the  re- 
quirements of  the  statute  are  substantially  complied  with. 

§  43.  A  private  examination. — This  is  the  first  and  lead- 
ing requirement  in  all  the  statutes.  The  law  long  looked  upon 
the  wife  as  und<3r  the  control  of  the  husband,  holding  him  lia- 
ble for  her  torts  committed  in  his  presence,  on  the  theory  of  the 
power  or  coercion  he  could  exert  over  her.  So  it  was  not  ex- 
pected that,  in  his  presence,  and  within  his  hearing,  she  would 
be  likely  to  act  contrary  to  his  wishes,  and  therefore  it  required 
her  to  signify  her  wish  or  intention  apart  from  him  before  the 
officer  taking  her  acknowledgment. 

Now  first  the  question  arises,  what  language  must  be  used  to 
certify  to  this  requisite  of  the  statute  ?  It  is  best,  and  the  safest 
way  at  all  times,  to  follow  the  identical  language  of  the  statute, 
and  not  to  trust  to  equivalent  words  ;  sometimes,  where  the  form 
is  not  followed,  it  has  to  be  determined  whether  other  expres- 
sions may  be  construed  as  fulfilling  this  requirement,  but  where 
no  privy  examination  is  apparent,  the  certificate  is  worthless.1 

In  Meriam  v.  Harsen,2  it  is  said  "  the  object  of  the  private 
examination  of  the  wife,  apart  from  her  husband,  is  to  ascertain 
whether  the  execution  of  the  deed  was  her  spontaneous  act ;  or 
whether  she  was  induced  to  execute  it  by  coercion,  or  fear,  or 
ill  usage,  or  other  injury  from  her  husband." 

Where  the  certificate  of  the  acknowledgment  of  a  deed  by  a 
married  woman  does  not  show  that  she  was  examined  separate 
and  apart  from  her  husband,  parol  evidence  is  not  admissible  to 
show  that  she  was,  in  fact,  so  examined.3  It  need  not  state  that 
there  was  a  "  private  examination,"  if  it  certify  that  she  was 
examined  separate  and  apart  from  her  husband.4  But  the  aver- 
ment in  the  certificate  that  she  was  examined  privily  and  apart 

1  McCandless  v.  Engle,  51  Perm.  St.  309  ;  Evans  v.  Commonwealth,  4  Serg.  & 
R.  272  ;  Jourdan  v.  Jonrdan,  9  S.  &  R.  2G8  ;  Elliott  r.  Peirsol,  1  Pet.  328  ;  McCann 
v .  Edwards,  G  B.  Mon.  208  ;  Sibley  v.  Johnson,  1  Mich.  380  ;  Edgerton  r.  Jones, 
10  Minn.  427  ;  Howell  v.  Ashmore,  2  Zabr.  201  ;  Needles  v.  Needles,  7  Ohio  St. 
432  ;  Ewald  v.  Corbett,  32  Cal.  493. 

2  2  Barb.  Ch.  232. 

"Harty  v.  Ladd,  3  Oreg.  353;  S.  P.  Elliott  v.  Peirsol,  1  Pet.  328. 
4  Thayer  v.  Torrey,  37  N.  J.  L.  339. 


§  44  ACKNOWLEDGMENT   OF    DEEDS.  41 

from  her  husband,  is  not  impeached  by  proof  that  the  door  to 
the  next  room,  where  he  was  waiting,  was  not  shut.1 

Some  of  the  statutes  require  that  the  examination  be  made 
without  the  hearing  of  the  husband.  This  is  the  form  in  Cali- 
fornia. In  a  case  in  Indiana,  where  the  certificate  stated  that 
the  wife  had  been  examined  separate  and  apart  from  her  hus- 
band, but  did  not  state  that  she  had  been  examined  "  without 
the  hearing  of  her  husband,"  it  was  held  a  fatal  defect.2 

In  Michigan,  where  the  statute  required  the  deed  to  be  ac- 
knowledged on  "  a  private  examination  separate  and  apart  from 
her  husband,"  and  the  certificate  stated  that,  "  separately  and 
apart  from  her  husband,  she  acknowledged  that  she  executed 
the  same,  freely  and  without  fear  or  compulsion  of  any  one," 
it  was  held  it  was  defective,  because  it  did  not  state  that  the 
acknowledgment  was  made  on  a  "  private  examination."  3  The 
Court  say  :  "  It  may  be  admitted  that  the  terms  '  on  a  private 
examination'  might,  perhaps,  be  held  to  include  the  idea  of 
separation  from,  not  only  the  husband,  but  all  others ;  but  the 
terms,  '  separate  and  apart  from  her  husband,'  do  not  embrace 
this  full  idea."  This  construction  is  unusually  strict,  and  would 
not  be  generally  followed.  It  was  held,  in  North  Carolina,  that 
the  phrases,  "  privy  examination,"  "  private  examination,"  and 
"examination  separate  and  apart  from  her  husband,"  are  indif- 
ferently used  in  the  acts  of  assembly.4 

In  Love  v.  Taylor,5  the  certificate  of  acknowledgment  of  a 
married  woman  to  a  deed  relinquishing  her  dower,  which  stated 
that  the  "  said  E,  being  examined  separate  and  apart  from  her 
husband,  acknowledged,"  etc.,  was  held  sufficient ;  and  the  Court 
declared  that  it  was  not  absolutely  necessary  that  the  words  on 
"  private  examination  "  should  be  inserted  in  the  certificate,  but 
only  that  it  should  appear  that  the  acknowledgment  was  made 
out  of  the  presence  of  the  husband.  This  case  is  contrary  to 
Sibley  r.  Johnson,  Supra,  though  the  language  of  the  statutes 
was  similar  ;  it  is,  however,  preferable  as  an  authority. 

§  44.  The  wife  must  be  made  acquainted  with  the  con- 
tents of  the  instrument. — This  is  a  requisite  in  nearly  all  the 

1  KavanaugU  v.  Day,  10  R.  I.  393.  3  Sibley  v.  Johnson,  1  Mann.  380. 

2  Jordan  v.  Corey,  2  Ind.  385.  4  Skinner  v.  Fletcher,  1  Ired.  313. 

6  26  Miss.  567. 


42  ACKNOWLEDGMENT   OF    DEEDS.  §  45 

statutes.  In  some,  the  contents  must  be  explained  to  her  by  the 
officer,  as  in  California,  where  the  certificate  states  that  she  was 
made  acquainted  with  the  contents  of  the  instrument.1  In  a  few 
others,  it  does  not  seem  to  be  necessary  to  state  this,  it  being 
implied.  In  Delaware,  it  is  required  to  state  that  she,  "  being 
at  the  same  time  examined  by  us,  apart  from  her  husband, 
acknowledged  that  she  executed  the  said  indenture  willingly, 
without  compulsion,  or  threats,  or  fear  of  her  husband's  dis- 
pleasure " ;  and  in  New  York,  that  "  the  said ,  on  a  private 

examination  by  me,  separate  and  apart  from  her  said  husband, 
acknowledged  that  she  had  executed  the  same  freely,  and  with- 
out any  fear  or  Compulsion  of  her  husband."  In  California,  a 
certificate  stated  that  she,  "  after  being  made  acquainted  with 
the  contents  of  said  instrument,  acknowledged  "  the  same.  This 
was  held  sufficient,  although  it  did  not  state  that  the  contents 
were  made  known  to  her  by  the  certifying  officer.2  But  where 
the  statute  requires  that  the  contents  should  be  made  known 
to  her,  and  the  certificate  omits  to  state  that  fact,  it  is  in- 
valid.3 Where  a  statute  required  that  the  contents  be  explained 
to  her,  it  was  held  sufficient  to  certify  that  she  was  "  acquainted 
with  the  contents."4 

The  rule  is,  that  a.  certificate  of  acknowledgment  of  a  deed 
need  only  substantially  comply  with  the  statute,  and  a  certificate 
was  held  to  be  sufficient,  although  stating  that  the  "  contents 
and  meaning  of  said  husband  were  fully  explained  and  made 
known  to  her,"  instead  of  using  the  word  "  deed  "  in  the  place 
of  the  word  "  husband. "j5 

§  45.  The  certificate  must  state  a  voluntary,  free  act 
on  the  part  of  the  wife,  without  any  fear,  coercion,  or  compul- 

1So  in  Arkansas,  Colorado,  District  of  Columbia,  Illinois,  Kentucky,  where 
it  states  that  "  the  contents  and  effects  of  the  instrument  were  explained  to 
her,"  Louisiana,  Minnesota,  Missouri,  Nevada,  New  Jersey,  Ohio,  i  ennsylvania, 
Rhode  Island,  Texas,  Virginia,  West  Virginia. 

2  Jansen  v.  McCahill,  22  Cal.  563  ;  Talbot  v.  Simpson,  1  Pet.  C.  C.  188  ;  Shaller 
v.  Brand,  G  Binn.  438. 

»  O'Ferrall  v.  Simplot,  4  Greene,  (Iowa)  381 ;  Oowen  v.  Robbins,  19  111.  545  ;  Sil- 
liman  v.  Cummins,  13  Ohio,  116  ;  Hairston  v.  Randolph,  12  Leigh,  445  ;  Pease  v. 
Barbiers,  10  Cal.  436. 

4  Thomas  v.  Meir,  18  Mo.  573.    But  see  contra,  Stevens  v.  Doe,  6  Blackf .  475. 

6  Calumet  etc.  Co.  v.  Russell,  68  HI.  426.  Where  the  wife  did  not  understand 
English,  and  the  officer  did  not  communicate  with  her  in  her  language ,  the  cer- 
tificate was  invalid.  Fisher  v.  Meister,  24  Mich.  447. 


§  45  ACKNOWLEDGMENT   OF    DEEDS.  48 

sion  of  her  husband.  If  the  certificate  be  correct  in  every  other 
respect,  and  omits  to  state  that  she  willingly,  or  -freely,  or 
voluntarily  signed  the  deed,  it  is  fatally  defective.1  It  is  held 
that  the  very  words  of  the  statute  need  not  be  used,  provided  it 
is  shown  that  the  act  of  the  wife  was  free,  and  not  induced  by 
the  influence  or  compulsion  of  the  husband.  Thus,  where  the 
statute  required  the  officer  to  certify  that  on  "  a  private  exam- 
ination, apart  from  her  husband,  she  executed  such  conveyance 
freely  and  without  any  fear  or  compulsion  of  her  husband,"  a 
certificate  that,  on  examination,  "  separate  and  apart  from  her 
husband,"  she  acknowledged  the  execution  of  the  same,  "  with- 
out fear  or  compulsion  from  him,"  was  sufficient.2  So  where 
the  certificate  failed  to  set  forth  that  the  wife  "  voluntarily  "  exe- 
cuted the  conveyance,  this  omission  was  held  to  be  substantially 
supplied  by  the  expression  that  "  she  freely  executed  the  deed 
without  any  fear,  threats,  or  compulsion  of  her  husband."  3 

In  one  case,  a  construction  was  placed  upon  the  word  "  volun- 
tary "  which  appears  very  liberal.  The  statute  of  Ohio,  under 
which  the  decision  was  made,  required  her  to  declare  "  that  she 
voluntarily,  and  of  her  own  free  will  and  accord,  without  any 
fear  or  coercion  of  her  husband,  did  acknowledge,"  etc.  The 
certificate  stated  it  as  being  her  "  voluntary  act  and  deed,"  but 
omitted  that  it  was  "  without  any  fear  or  coercion  of  her  hus- 
band." The  Court  say  :  "  The  term  '  voluntary '  is  defined  to  be, 
acting  without  compulsion,  acting  by  choice,  willing  of  one's 
own  accord.  The  declaration  of  the  wife,  then,  on  her  separate 

1  Smith  v.  Elliott,  39  Tex.  201 ;  Rice  v.  Peacock,  37  Id.  392 ;  Laird  v.  Scott,  5 
Ileisk.  314  ;  Blackburn  v.  Pennington,  8  B.  Mon.  217  ;  Toulmin  v.  Heidelberg, 
32  uliss.  2G8  ;»Lucas  v.  Cobb,  1  Dev.  £  Bat.  328.    In  a  recent  case,  in  West  Vir- 
ginia, Leftwich  v.  Xeal,  7  "W.  Va.  5G9,  the  certificate  was  invalid  because  it  did 
not  state  "that  she  had  willingly  executed  the  same,"  and  omitted  words  of 
equivalent  import.    In  this  case,  the  authorities  are  reviewed.    In  Bernard  v. 
Elder,  50  Miss.  342,  the  certificate  was  as  follows  :  "  Also,  Rosalie  Ladner,  wife 
of  Joseph  Ladner,  who  has  been  examined  separately  and  apart  from  her  hus- 
band, lias  declared  that  she  has  signed,  sealed,  and  delivered  these  presents, 
without  fear,  threats,  or  compulsion  of  her  husband."    It  was  held  that  this 
was  substantially  sufficient,  though  "private  examination,"  and  "  as  her  volun- 
tary act  and  deed,"  and  "freely  "  were  omitted  as  prescribed  in  the  statute. 
The  Court  cited  previous  cases  as  sustaining  its  decision  :  Russ  v.  "W'ingate,  30 
Miss.  440  ;  Smith  v.  AVilliams,  38  Miss.  48.    See,  also,  Heinrich  v.  Simpson,  GG 
HI.  57  ;  Ridgeway  v.  Underwood,  G7  111.  410. 

2  Dennis  v.  Tarpenny,  20  Barb.  371. 

3  Battin  v.  Bigelow,  1  Pet.  C.  C.  452. 


44  ACKNOWLEDGMENT   OF   DEEDS.  §  46 

examination,  excludes  the  idea  of  fear  or  force.  If  she  executed 
the  instrument  willingly,  of  choice,  and  of  her  own  accord,  as 
her  admission  before  the  justice  imports,  she  could  not  have 
been  under  the  influence  of  fear,  much  less  of  coercion."  1 

In  Tubbs  v.  Gatewood,2  a  recent  case  in  Arkansas,  the  certifi- 
cate stated  that  she  declared  she  signed,  executed,  etc.,  "  with- 
out compulsion  or  influence  of  her  husband,"  but  the  statute 
required  her  to  declare,  that  "  she  had  of  her  own  free  will  " 
executed  the  instrument,  "  without  compulsion  or  undue  influ- 
ence of  her  husband."  It  was  held  that  the  use  of  the  latter 
words  sufficiently  indicated  that  it  was  "  freely  "  done. 

The  strictest  rule  that  has  been  laid  down  in  respect  to  this 
requisite  is  held  in  Alabama.  The  statute  required  that  she 
should  acknowledge  "  that  she  signed,  sealed,  and  delivered  the 
same,  as  her  voluntary  act  and  deed,  freely,  without  any  fear, 
threats,  or  compulsion  of  her  husband  " ;  and  the  certificate  was 
"  that  she  signed,  sealed,  and  delivered  the  above  instrument 
on  her  own  free  will  and  accord,  and  without  any  force,  persua- 
sion, or  threats  from  her  said  husband."  It  will  be  seen  that 
the  certificate  omits  to  state  that  she  did  it  without  the  fear  of 
her  husband ;  and  the  Court  say :  "  Fear  may  exist  on  the  part 
of  the  wife,  '  without  any  force,  persuasion,  or  threats  '  from 
her  husband.  Her  acknowledgment,  that  she  executed  the 
deed  of  her  own  free  will  and  accord,  is  not  identical  in  sub- 
stance without  an  acknowledgment  that  she  executed  it  freely, 
without  any  fear  of  her  husband.  Fear  may  exist,  and  often 
does  exist,  in  a  degree  so  moderate  as  not  to  destroy  the  freedom 
of  the  will.  *****  But  it  may  exist  in  a  much  more 
moderate  degree,  and  fall  far  short  of  undue  influence,  or  moral 
coercion."3 

§  46.  That  she  does  not  wish  to  retract  her  act,  or  that 
she  desires  the  instrument  to  be  recorded,  is  a  requisite  to  be 
found  in  some  certificates.  This  is  required  in  California,  where 
the  certificate  must  state  "  that  she  does  not  wish  to  retract  the 
execution  of  the  same."  *  The  same  is  required  in  the  District 

1  Brown  v.  Farran,  3  Ohio,  140  ;  S.  P.  Dundas  v.  Hitchcock,  12  How.  U.  S.  250. 

2  26  Ark.  128. 

8  Boykin  v.  Rain,  28  Ala.  332. 

Under  the  present  law  of  that  State  there  is  no  privy  examination  required. 

*  Civil  Code,  Sec.  1191. 


§   47  ACKNOWLEDGMENT   OF   DEEDS.  45 

of  Columbia.1  In  Kentucky,  it  is  to  be  stated  that  she  "  con- 
sented the  same  might  be  recorded."2  In  Nevada,  it  is  required 
to  be  stated  that  "  she  does  not  wish  to  retract  the  execution  of 
the  same."  3  The  same  form  is  required  in  Rhode  Island,  Texas, 
Virginia,  and  West  Virginia.4 

In  Grove  v.  Zumbro,5  it  was  held  that  the  omission  in  the 
certificate  to  state  that  she  did  not  wish  to  retract  what  she  had 
done,  was  a  fatal  defect.  But,  in  Illinois,  it  has  been  decided 
that  the  words  "  does  not  wish  to  retract "  do  not  properly  con- 
stitute any  part  of  the  acknowledgment ;  they  are  inserted  in 
the  statute  to  afford  a  married  woman  an  opportunity  to  avoid 
a  deed  conveying  her  interest,  which  she  has  voluntarily  exe- 
cuted, if,  at  the  time  the  officer  takes  the  acknowledgment,  she 
desires  to  retract  what  she  has  done.6  This  decision,  it  appears 
to  me,  holds  too  liberal  a  construction  of  the  statute,  and 
would  not,  it  is  believed,  be  accepted  as  authority  elsewhere. 
The  present  statute  of  Illinois  does  not  require  these  words. 

§  47.  Effect  of  the   certificate  against  the  -wife. — The 

certificate  complying  with  the  requirements  of  the  law  will  con- 
clude the  wife,  in  the  absence  of  fraud,  imposition,  or  com- 
bination.7 • 

In  Louden  v.  Blythe,8  there  was  a  very  elaborate  examina- 
tion of  this  subject,  and  in  the  decision  it  is  said :  "  A  regard 
to  the  policy  of  the  law  for  the  security  of  titles  and  the  pro- 
tection of  the  rights  of  property  which  are  passed  by  convey- 
ances and  assurances  of  which  these  acknowledgments  and  cer- 
tificates are  a  common  part,  will  restrain  this  Court  from  allow- 
ing such  acknowledgments  to  be  impeached  by  parol  evidence, 
contradicting  the  facts  certified,  in  the  absence  of  fraud  and 
imposition ;  and  where  there  are  fraud  and  imposition  alleged, 
the  knowledge  of  it  ought  to  be  brought  home  to  the  grantee, 

1  Rev.  Stat.  Sec.  451. 

2  Gen.  Stat.  1873,  p.  276. 

8  Compiled  Laws,  Sec.  250. 

4  See  forms  in  Appendix. 

6 14  Gratt.  501.  So  in  Bartlett  v.  Fleming,  3  W.  Va.  1G3.  See  Allen  v.  Short- 
ridge,  1  Duvall,  34. 

6  Hughes  v.  Lane,  11  111.  123. 

"•  Hartley  v.  Frosh,  G  Tex.  208;  Hays  v.  Hays,  5  Rich.  S.  C.  31;  Michener  v. 
Cavender,  38  Penn.  St.  334;  Central  Bank  v.  Copeland,  18  Md.  305. 

8 16  Penn.  St.  532. 


46  ACKNOWLEDGMENT   OF   DEEDS.  §  48 

or  of  such  circumstances  within  his  knowledge  of  the  want  of 
free  will  and  consent  on  the  part  of  the  wife  as  should  lead  him 
to  inform  himself  of  the  reality  of  a  free  execution  and  ac 
knovvledgment  by  the  wife  whose  property  was  to  be  divested. 
Where  the  grantee  has  knowledge  of  facts  to  put  him  on  that 
inquiry,  if  silent  and  inactive  on  the  subject,  it  is  at  his  peril, 
and  he  must  abide  the  consequences." 1 

But  the  failure  of  the  husband  to  disclose  to  his  wife  the 
character  of  a  mortgage  which  she  executed  at  his  request,  and 
in  entire  ignorance  of  its  contents,  the  grantee  not  being  pres- 
ent, and  having  no  reason  to  suspect  imposition,  does  not  consti- 
tute such  fraud  as  will  enable  her  to  contradict,  by  parol,  the 
certificate  of  acknowledgment.2 

So  a  married  woman  cannot  impeach  for  invalid  acknowledg- 
ment in  the  hands  of  a  bona  fido  grantee.3 

§  48.  Liability  of  notary  for  invalid  acknowledgment. 
— Notaries  are  required  to  give  bonds,  in  a  majority  of  our 
States,  for  the  true  and  faithful  discharge  of  their  official  duties. 
The  question  will  arise  as  to  the  nature  and  extent  of  this 
guarantee,  and  as  to  what  particular  acts  or  omissions  it  pro- 
vides against.  Does  it  assure  one  against  the  unskillfulness  or 
the  incapacity  of  the  notary  in  the  discharge  of  his  official  acts, 
or  does  it  merely  assure  against  his  negligence  ?  There  can  be 
no  question  whatever  that  it  does  give  a  guarantee  against  his 
negligence  ;  for  it  could  hardly  be  maintained  he  discharges  his 
duties  faithfully  when  he  is  guilty  of  negligence  in  his  official 
acts ;  but  it  is  quite  a  different  question  whether  he  can  be  held 
liable,  on  his  official  bond,  for  incapacity  or  mistake,  when  he 
acts  in  good  faith  to  the  best  of  his  ability.  There  is  no  doubt, 
if  he  assumes  to  act  in  a  given  case  as  one  possessing  the  requi- 
site ability  or  skill,  he  can  be  held  as  any  other  agent  for  any 
loss  by  reason  of  his  incapacity,  but  then  it  can  hardly  be  said 
he  is  guilty  of  unfaithfulness.4  For  instance,  suppose,  in  taking 

1  See,  to  the  same  point,  Schrader  v.  Decker,  9  Penn.  St.  14. 

2  Baldwin  v.  Snowden,  11  Ohio  St.  203. 
s  Kerr  v.  Russell,  09  111.  G6G. 

See,  for  a  further  examination  of  this  question,  the  chapter  on  "  Notarial  Acts 
as  Evidence." 

4  See,  for  a  further  examination  of  this  liability,  Sec.  134,  on  negligence  in  refer- 
ence  to  negotiable  paper. 


§  48  ACKNOWLEDGMENT    OF    DEEDS.  47 

an  acknowledgment,  he  has  put  before  him,  as  is  frequently  the 
case,  a  form  of  a  certificate  drawn  by  the  attorney  of  one  of  the 
parties,  and  that  he  duly  attests  it  with  his  signature'  and  offi- 
cial seal,  and  that  afterward  it  turns  out  the  certificate  is  in- 
valid for  some  omission  or  informality,  and  loss  is  sustained 
thereby.  Is  he  liable  on  his  official  bond  for  the  damages  thus 
occasioned  ?  "We  think  this  would  depend  on  the  nature  of  the 
omission,  as  whether  he  omitted  to  certify  to  a  fact  to  which 
he  must  certify  as  having  personal  cognizance.  It  would  hardly 
be  fair  to  hold  the  notary  to  any  stricter  liability,  for  he  is  not 
to  be  considered  a  lawyer  who  warrants  his  skill  and  capacity 
unless  he  assumes  to  do  so.  A  case  in  California1  illustrates 
the  position  laid  down  above,  and,  perhaps,  holds  the  notary  to 
a  stricter  liability  than  would  be  the  case  elsewhere ;  but  it  was 
based  on  the  statute,  which  provided  :  "  For  any  misconduct  or 
neglect  of  duty,  in  any  of  the  cases  in  which  any  notary  public, 
appointed  under  the  authority  of  this  State,  is  authorized  to 
act,"  etc.,  "  he  shall  be  liable  on  his  official  bond  to  the  parties 
injured  thereby  for  all  damages  sustained."2  In  this  case,  the 
notary,  Finlay,  took  the  acknowledgment  of  a  mortgagor, 
and  omitted  to  state  in  his  certificate,  as  the  statute  required, 
that  the  party  acknowledging  was  known  to  him,  or  was 
identified  by  the  testimony  of  a  witness  examined  for  that 
purpose.  The  certificate  was  partly  filled  up  by  a  person  who 
acted  as  attorney  for  both  the  mortgagor  and  mortgagee,  but 
space  was  left  for  this  requisite.  The  mortgage  thus  recorded 
was  held  insufficient  to  give  notice  to  a  subsequent  incumbrancer, 
and  the  result  was  that  the  party  lost  the  security  of  his  debt, 
as  the  mortgagor  was  insolvent.  The  notary  was  held  liable  on 
his  official  bond  for  the  amount  of  the  debt  and  interest.  In 
giving  the  decision  the  Court  said :  "  The  neglect  is  not  ex- 
cused by  the  fact  that  the  certificate  had  been  partially  filled  by 
the  attorney  for  the  grantee.  The  certificate,  upon  its  face,  is 
unfinished;  the  date  and  the  name  of  the  grantor  had  been  in- 
serted, leaving  it  for  the  notary  to  insert  his  knowledge,  or  the 

*  Fogarty  v.  Finlay,  10  Cal.  239. 

2  The  present  Political  Code,  Sec.  801,  has  substantially  the  same  provision. 
It  provides:  "  For  the  official  misconduct  or  neglect  of  a  notary  public,  he  and 
the  sureties  on  his  official  bond  are  liable  to  the  parties  injured  thereby  for  all 
the  damages  sustained." 


48      STATUTES  CONCERNING  ACKNOWLEDGMENTS.     §  49 

evidence  received  of  the  identity  of  the  party  making  the  ac- 
knowledgment. If  the  notary  read  the  certificate  before  signing 
it,  this  omission  must  have  been  known  to  him  ;  if  he  did  not,  he 
is  equally  guilty  of  negligence,  for  an  officer  who  affixes  his  offi- 
cial signature  and  seal  to  a  document  (thereby  giving  to  it  the 
character  of  evidence)  without  examining  it  to  find  whether 
the  facts  certified  are  true,  can  scarcely  be  said  to  faithfully 
perform  his  duty  according  to  law." 

§  49.  Statutory  provisions  in  reference  to  acknowl- 
edgments.— The  following  is  a  synopsis  of  the  statutory  pro- 
visions of  the  various  States  in  reference  to  the  execution  and 
acknowledgments  of  conveyances : 

ALABAMA. — Execution — By  grantor,  and  attested  by  one 
witness.  If  the  grantor  be  unable  to  write,  then  by  two  wit- 
nesses, who  must  write  their  names.  Acknowledgment  dis- 
penses with  witnesses.  (Code,  Sees.  1535,  1536.)  Acknowl- 
edgment— Within  the  State  may  be  made  before  judges  of  the 
Supreme  and  Circuit  Courts,  and  their  clerks,  chancellors,  reg- 
isters in  chancery,  judges  of  the  Court  of  Probate,  justices  of 
the  peace,  and  notaries  public.  (Code,  Sec.  1545.  See  forir 
of  acknowledgment  in  Appendix.)  Married  women — Convey- 
ances of  a  wife's  property,  made  in  writing  by  husband  and 
wife  jointly,  and  acknowledged  before  some  officer  authorized 
to  take  acknowledgments  of  conveyances,  are  as  valid  and  ade- 
quate to  pass  the  wife's  estate  as  if  the  same  were  attested  by 
two  witnesses.  (Code,  Sec.  1552.)  Dower — No  private  ex- 
amination required  to  relinquish. 

ARKANSAS. — Execution — In  the  presence  of  two  disinterested 
witnesses,  or,  in  default  thereof,  shall  be  acknowledged  by  the 
grantor  in  the  presence  of  two  such  witnesses,  who  shall  affix 
their  names  and  dates  of  signing.  Acknowledgment — When  ac- 
knowledged, or  proved  in  the  State,  before  the  Supreme  Court, 
the  Circuit  Court,  or  either  of  the  judges  thereof,  or  the  clerk  of 
any  Court  of  Record,  or  before  any  justice  of  the  peace  or 
notary  public.  (Gantt's  Dig.  Sees.  840-1.)  Married  women — 
To  have  private  examination.  (See  form  in  Appendix.) 

CALIFORNIA. — Execution — Witnesses  not  necessary,  but 
usual.  Acknowledgment — Within  the  State,  before  a  judge  or 


§  49  STATUTES    CONCERNING   ACKNOWLEDGMENTS.  49 

a  clerk  of  a  Court  of  Record,  a  mayor  or  recorder  of  a  city,  a 
Court  commissioner,  a  county  recorder,  a  notary  public,  or  a 
justice   of    the    peace.     (Civil    Code,    Sec.    1181.)     Married   ^ 
woman — Must  be  made  acquainted  by  the  officer  with  the  con- 
tents of  the  instrument,  on  an  examination  without  the  hearing 
of  her  husband ;    and  must  thereupon  acknowledge  to  the  of-   s^ 
ficer  that  she  executed  the  instrument,  and  that  she  does  not 
wish  to  retract  such  execution.     (Civil  Code,  Sec.  1186.     For   ' 
form,  see  Appendix.) 

COLORADO. — Execution — No  witnesses  required.  Acknowl- 
edgment— Within  the  State,  before  any  justice  of  the  Supreme  or 
District  Courts,  before  a  clerk  of  the  same  or  his  deputy,  pro- 
bate judge  of  any  county,  such  clerks  or  probate  judge  to  cer- 
tify by  seal ;  before  the  clerk  and  recorder  of  any  county,  be- 
fore any  notary  public,  he  certifying  the  same  by  his  notarial 
seal.  (Rev.  Stat.  p.  108.)  Married  women — Separate  examina- 
tion required  for,  and  officer  to  make  known  contents  of  instru- 
ment. 

CONNECTICUT. — Execution — By  grantor  in  presence  of  two 
witnesses,  who  must  sign  as  such.  (Rev.  Stat.  1875,  p.  352.) 
Acknowledgment — May  be  made  in  the  State  before  a  judge  of  a 
Court  of  Record  in  this  State,  or  of  the  United  States,  justice 
of  the  peace,  commissioner  of  the  school  fund,  commissioner  of 
the  Superior  Court,  notary  public,  either  with  or  without  his 
official  seal,  town  clerk  or  assistant  town  clerk.  In  any  other 
State  or  Territory,  by  a  commissioner  appointed  by  the  governor 
of  the  State,  and  residing  therein,  or  any  other  officer  author- 
ized to  take  the  acknowledgment  of  deeds  in  such  State  or 
Territory.  In  a  foreign  country,  by  any  consul  of  the  United 
States,  or  notary  public,  or  justice  of  the  peace.  Married 
women — No  private  acknowledgment  required.  Dower  exists, 
but  only  in  the  real  estate  of  which  the  husband  is  owner  at  Ms 
death  (p.  377). 

DELAWARE. — Execution — Witnesses  may  attest,  but  are  not 
necessary.  Acknowledgment — May  be  made  in  any  county  in 
the  Superior  Court,  or  before  the  chancellor,  or  any  judge,  or 
notary  public,  or  before  two  justices  of  the  peace  for  the  same 
county.  Such  deed  may  also  be  acknowledged  in  the  said 
Superior  Court  by  attorney  by  virtue  of  a  power  contained  in 
NOTARIES — 4. 


50       STATUTES  CONCERNING  ACKNOWLEDGMENTS.     §  49 

it,  or  separate  from  it ;  the  power  being  first  proved  in  the  said 
Court.  Also,  such  deed  may  be  proved  in  the  said  Court  by 
one  or  more  of  the  subscribing  witnesses.  (Rev.  Code,  1874, 
p.  501.)  Married  women — Are  required  to  have  a  separate  and 
private  examination,  and  the  acknowledgment  may  be  taken  in 
any  county  before  the  chancellor,  or  any  judge,  a  notary  public, 
or  two  justices  of  the  peace.  (For  form,  see  Appendix.) 

FLORIDA. — Execution — All  grants,  conveyances,  or  assign- 
ments of  trust,  or  confidence  of  or  in  any  lands,  tenements,  or 
hereditaments,  or  of  any  estate  or  interest  therein,  shall  be  by 
deed  sealed  and  delivered  in  the  presence  of  two  witnesses  by 
the  parjy  granting,  conveying,  or  assigning  the  same.  (Bush's 
Dig.  149.)  Acknowledgment — To  be  made  before  officer  author- 
ized to  record  conveyance,  or  before  some  judicial  officer  of  the 
State,  (Id.  p.  151)  or  before  a  notary  public.  (Id.  p.  613.) 
Married  women — To  have  private  examination  when  joining  to 
release  dower  ;  and  acknowledgment  must  state  that  the  relin- 
quishment  and  renunciation  of  dower  is  made  freely  and  volun- 
tarily, and  without  any  compulsion,  constraint,  apprehension,  or 
fear  of  or  from  the  husband.  (Id.  p.  149.) 

GEORGIA. — Execution — Must  be  attested  by  at  least  two  wit- 
nesses, and  delivered  to  the  purchaser,  or  some  one  for  him,  and 
may  be  made  on  a  valuable  or  good  consideration.  (Code  of 
1873,  Sec.  2690.)  Acknowledgment — By  a  judge  of  a  Court  of 
Record,  a  justice  of  the  peace,  notary  public,  or  clerk  of  the 
Superior  Court  in  the  county  in  which  the  three  last  mentioned 
officers,  respectively,  hold  their  appointments.  A  witness  may 
prove  the  execution  belore  either  of  the  officers  aforesaid,  which 
will  entitle  it  to  record.  (Code,  Sees.  2706,  2707.)  Married 
women — No  private  acknowledgment  required,  except  in  certain 
cases  in  relinquishing  dower. 

ILLINOIS. — Execution — Witnesses  not  necessary,  but  may 
attest.  Acknowledgment — In  the  State  may  be  before  a  master 
in  chancery,  notary  public,  United  States  commissioner,  circuit 
or  county  clerk,  justice  of  the  peace,  or  any  Court  of  Record 
having  a  seal,  or  any  judge,  justice,  or  clerk  of  any  such  Court. 
When  taken  before  a  notary  public  or  United  States  commis- 
sioner, the  same  shall  be  attested  by  his  official  seal ;  when 
taken  before  a  Court  or  the  clerk  thereof,  the  same  shall  be  at- 


§  49    STATUTES  CONCERNING  ACKNOWLEDGMENTS.      51 

X 

tested  by  the  seal  of  such  Court;  and  when  taken  before  a 
justice  of  the  peace,  there  shall  be  added  the  certificate  of  the 
county  clerk,  under  his  seal  of  office,  that  the  person  taking  such 
acknowledgment  or  proof  was  a  justice  of  .the  peace  in  said 
county  at  the  time  of  taking  the  same.  If  the  justice  of  the 
peace  reside  in  the  county  where  the  lands  mentioned  in  the  in- 
strument are  situated,  no  such  certificate  shall  be  required. 
(Hev.  Stat.  1874,  p.  276.)  Married  women — The  acknowledg- 
ment or  proof  of  any  deed,  mortgage,  conveyance,  release  of 
dower,  power  of  attorney,  or  other  writing  of  or  relating  to  the 
sale,  conveyance,  or  other  disposition  of  lands  or  real  estate,  or 
any  interest  therein,  by  a  married  woman,  may  be  made  and 
certified  the  same  as  if  she  were  a  feme  sole,  and  shall  have  the 
same  effect  (p.  276).  (For  form,  see  Appendix.) 

INDIANA. — Execution — Witnesses  are  not  required  to  attest. 
Acknowledgment — Before  any  judge,  or  clerk  of  a  Court  of 
Record,  justice  of  the  peace,  auditor,  recorder,  notary  public,  or 
mayor  of  a  city  in  this  or  any  other  State,  or  before  any  com- 
missioner appointed  in  any  other  State  by  the  governor  of  this 
State,  or  before  any  minister,  charge  d'affaires,  or  consul  of  the 
United  States,  in  any  foreign  country.  (1  G.  &  II.  261.) 
Married  women — It  is  not  necessary  for  a  married  woman  to 
acknowledge  her  deed  in  any  form  other  than  that  required  by 
unmarried  persons. 

IOWA. — Execution — Witnesses  are  not  required,  but  may 
attest.  Acknowledgment — Any  deed,  conveyance,  or  other  in- 
strument in  writing,  by  which  real  estate  in  this  State  shall  be 
conveyed  or  incumbered,  if  acknowledged  within  this  State, 
must  be  so  before  some  Court  having  a  seal,  or  some  judge  or 
clerk  thereof,  or  some  justice  of  the  peace  or  notary  public. 
(Code  1873,  Sec.  1955.)  The  Court,  or  officer  taking  the  ac- 
knowledgment, must  indorse  upon  the  deed,  or  other  instrument, 
a  certificate  setting  forth  the  following  particulars  :  1.  The 
title  of  the  Court,  or  the  person  before  whom  the  acknowledg- 
ment was  taken.  2.  That  the  person  making  the  acknowledg- 
ment was  personally  known  to  at  least  one  of  the  judges  of  the 
Court,  or  to  the  officer  taking  the  acknowledgment,  to  be  the 
identical  person  whose  name  is  affixed  to  the  deed  as  grantor, 
or  that  such  identity  was  proved  by  at  least  one  credible  wit- 


52  STATUTES    CONCERNING    ACKNOWLEDGMENTS.  §  49 

ness,  naming  him.  3.  That  such  person  acknowledged  the  in- 
strument to  be  his  voluntary  act  and  deed.  (Code,  Sec.  1958.) 
Married  women — No  private  acknowledgment  required. 

KANSAS. — Execution — No  witnesses  are  required.  Acknowl- 
edgment— All  conveyances,  and  other  instruments  affecting  real 
estate,  must  be  acknowledged  within  this  State  before  some 
Court  having  a  seal,  or  some  judge,  justice,  or  clerk  thereof, 
or  some  justice  of  the  peace,  notary  public,  county  clerk,  or 
register  of  deeds,  or  mayor,  or  clerk  of  an  incorporated  city. 
The  Court  or  officer  taking  the  acknowledgment  must  indorse 
upon  the  deed  a  certificate,  showing  in  substance  the  title  of  the 
Court  or  officer  before  whom  the  acknowledgment  is  taken; 
that  the  person  making  the  acknowledgment  was  personally 
known  to  the  Court,  or  to  the  officer  taking  the  acknowledg- 
ment, to  be  the  same  person  who  executed  the  instrument,  and 
that  such  person  duly  acknowledged  the  execution  of  the  same. 
(Gen.  Stat.  1868,  p.  186.)  Married  women — No  private  ex- 
amination required. ' 

KENTUCKY. — Execution — No  witnesses  are  required.  Ac- 
knowledgment— Before  the  clerk  of  the  county  in  which  the 
property  conveyed,  or  the  greater  part  thereof,  is  situated. 
(Gen.  Stat.  1873,  p.  256.)  Married  women — To  have  a  private 
examination,  if  taken  out  of  the  State,  separate  and  apart  from 
husband,  and  must  declare  she  is  willing  to  have  the  instrument 
recorded.  (For  form  of  acknowledgment  out  of  State,  see 
Appendix.) 

LOUISIANA. — Execution — Deed  drawn  up  by  a  notary  in 
presence  of  two  witnesses".  (Civil  Code,  Sec.  2231.)  Acknowl- 
edgment— A  conveyance  of  real  estate  is  an  act  requiring  the 
office  of  a  notary  in  this  State.  (Rev.  Stat.  p.  494.)  In  order 
to  authenticate  the  act,  it  must  be  executed  before  a  notary  pub- 
lic, in  presence  of  two  witnesses,  free,  male,  and  aged  at  least 
fourteen  years,  or  of  three  witnesses  if  the  party  be  blind.  If 
the  party  does  not  know  how  to  sign,  the  notary  must  cause  him 
to  affix  his  mark  to  the  instrument.  Married  women  above  the 
age  of  twenty-one  years  shall  have  the  right,  with  the  consent 
of  their  husbands,  by  act  passed  before  a  notary  public,  to  re- 
nounce in  favor  of  third  persons  their  matrimonial,  dotal,  para- 
phernal,  and  other  rights :  provided,  that  the  notary  public,  be- 


§  49    STATUTES  CONCERNING  ACKNOWLEDGMENTS.      53 

fore  receiving  the  signature  of  any  married  woman  out  of  the 
presence  of  her  husband,  the  nature  of  her  rights,  and  of  the 
contract  she  agrees  to.  (Rev.  Stat.  p.  338.) 

MAINE. — Execution — Witnesses  may  attest,  but  are  not  nec- 
essary. Acknowledgment — Deeds  are  to  be  acknowledged  by 
the  grantors  or  one  of  them,  or  by  their  attorney  executing  the 
same,  before  a  justice  of  the  peace  in  this  State,  or  any  justice 
of  the  peace,  magistrate,  or  notary  public  within  any  of  the 
United  States,  or  before  any  minister  or  consul  of  the  United 
States,  or  notary  public  in  any  foreign  country.  (Rev.  Stat. 
1871,  p.  561.)  Married  women — No  private  examination  re- 
quired. 

MARYLAND. — Execution — Every  deed  conveying  real  estate 
shall  be  signed  and  sealed  by  the  grantor  or  bargainer,  and  at- 
tested by  at  least  one  witness.  Acknowledgment — In  the  county 
or  city  where  the  real  estate  or  any  part  of  it  lies,  before  some 
one  justice  of  the  peace  for  said  county  or  city,  a  judge  of  the 
Orphan's  Court  for  said  county  or  city,  the  judge  of  the  Circuit 
Court  for  the  county;  the  judge  of  the  Superior  Court,  Court 
of  Common  Pleas,  or  Circuit  Court  for  Baltimore  City.  Out- 
side of  county  or  city,  but  within  the  State,  before  any  justice 
of  the  peace  for  the  county  or  city  where  the  grantor  may  be  at 
the  time  of  the  acknowledgment ;  the  official  character  of  the 

o  * 

justice  being  certified  by  the  clerk  of  the  Circuit  Court  or  Su- 
perior Court,  under  his  official  seal;  before  any  judge  of  the 
Circuit  Court,  for  the  circuit  in  which  the  grantor  may  be ;  or 
before  the  judge  of  the  Superior  Court,  Court  of  Common 
Pleas,  or  Circuit  Court,  if  the  grantor  be  in  Baltimore  City. 
(Code,  p.  132.)  Married  women — No  private  examination  re- 
quired. (Code,  p.  327,  Sec.  11.) 

MASSACHUSETTS. — Execution  —  May  be  attested  by  wit- 
nesses, but  not  necessary.  Acknowledgment — May  be  made  be- 
fore any  justice  of  the  peace  in  this  State,  or  before  any  justice 
of  the  peace,  magistrate,  or  notary  public,  or  commissioner  ap- 
pointed for  that  purpose  by  the  governor,  within  the  United 
States,  or  in  any  foreign  country,  or  before  a  minister  or  consul 
of  the  United  States  in  any  foreign  country.  (Rev.  Stat.  p. 
467.)  By  Laws  1867,  Chap.  250,  notaries  are  authorized  to 
take  acknowledgment  of  deeds ;  and  acknowledgments  hereto- 


54  STATUTES    CONCERNING   ACKNOWLEDGMENTS.  §  49 

fore  made  before  notaries  were  declared  valid.  Married  women 
— No  private  acknowledgment  by. 

MICHIGAN. — Execution — Two  witnesses  are  required  to  attest 
and  sign.  Acknowledgment — May  be  made  before  any  judge  or 
commissioner  of  a  Court  of  Record,  or  before  any  notary  public, 
justice  of  the  peace,  or  master  in  chancery  within  the  State. 
(Compiled  Laws,  p.  1342.)  The  Comptroller  of  Detroit  is  au- 
thorized to  take.  (Laws  1857,  p.  91,  Sec.  21.)  Married  women 
— When  any  married  woman,  residing  in  this  State,  shall  join 
with  her  husband  in  a  deed  of  conveyance  of  real  estate,  situ- 
ate within  this  State,  the  acknowledgment  of  the  wife  shall  be 
taken  separately  and  apart  from  her  husband ;  and  she  shall  ac- 
knowledge that  she  executed  such  deed  freely  and  without  any 
fear  or  compulsion  from  any  one.  (Comp.  Laws,  p.  1343.) 

MINNESOTA. — Execution — To  be  executed  in  the  presence  of 
two  witnesses,  who  shall  subscribe  their  names  as  such.  Ac- 
knowledgment— Judges  of  the  Supreme  and  District  Courts  and 
Courts  of  Probate,  the  clerks  of  said  Courts,  notaries  public, 
justices  of  the  peace,  registers  of  deeds  and  Court  commission- 
ers, are  authorized  to  take  the  acknowledgment  of  deeds  and 
other  instruments  in  writing,  within  their  several  and  respective 
jurisdictions :  provided,  that  when  any  officer,  having  or  using 
a  seal  of  office,  takes  an  acknowledgment,  he  shall  affix  his  seal 
to  the  instrument  so  acknowledged.  (2  Bissell,  951.)  Mar- 
ried women — No  private  examination  required. 

MISSISSIPPI. — Execution — Witnesses  may  attest,  but  are  not 
required.  Acknowledgment — By  a  judge  of  the  Supreme  Court. 
(Rev.  Code,  1871,  Sec.  404.)  Any  judge  of  the  Circuit  Court, 
any  chancellor,  any  clerk  of  a  Court  of  Record,  who  shall  cer- 
tify such  acknowledgment  or  proof,  under  the  seal  of  his  office ; 
or  any  justice  of  the  peace,  or  member  of  the  board  of  county 
supervisors,  whether  the  lands  conveyed  be  within  his  county 
or  not.  (Code,  Sec.  2310.)  By  Law  April  5th,  1872,  notaries 
can  take  acknowledgments.  Married  women — A  private  ex- 
amination required  to  pass  any  title,  or  relinquish  right  of 
dower.  (Sec.  2315.) 

MISSOURI. — Execution — Witnesses  may  attest,  but  not  nec- 
essary. Acknowledgment — Before  some  Court  having  a  seal,  or 
some  judge,  justice,  or  clerk  thereof ;  notary  public,  or  some 


§  49  STATUTES    CONCERNING   ACKNOWLEDGMENTS.  55 

justice  of  the  peace  of  the  county  in  Avhich  the  real  estate -con- 
veyed or  affected  is  situated.  (1  Wagner's  Stat.  p.  2,74.)  No 
acknowledgment  of  any  instrument  in  writing  conveying  real 
estate,  or  whereby  any  real  estate  may  be  affected,  shall  be 
taken,  unless  the  person  offering  to  make  such  acknowledgment 
shall  be  personally  known  to  at  least  one  judge  of  the  Court,  or 
to  the  officer  taking  the  same,  to  be  the  person  whose  name  is 
subscribed  to  such  instrument  as  a  party  thereto,  or  shall  be 
proved  to  be  such  by  at  least  two  credible  witnesses,  and  no  ac- 
knowledgment of  a  married  woman  shall  be  taken  unless  she 
shall  first  be  made  acquainted  with  the  contents  of  such  instru- 
ment, and  shall  acknowledge,  on  an  examination,  apart  from  her 
husband,  that  she  executed  the  same  freely  and  without  com- 
pulsion or  undue  influence  of  her  husband.  (1  Wagner,  p.  275.) 
NEBRASKA. — Execution — Must  be  signed  by  the  grantor,  being 
of  lawful  age,  in  the  presence  of  at  least  one  competent  witness, 
who  shall  subscribe  his  name  as  a  witness  thereto.  (Gen.  Stat. 
p.  872.)  Acknowledgment — Must  be  made  or  proved,  if  in  this 
State,  before  a  judge  or  clerk  of  any  Court,  or  some  justice  of 
the  peace  or  notary  public  therein ;  but  no  officer  can  take  any 
such  acknowledgment  or  proof  out  of  his  State  jurisdiction. 
(Gen.  Stat.  p.  873.)  Married  women — No  private  examination 
required. 

NEVADA. — Execution — Witnesses  are  not  required.  Ac- 
knowledgment— By  some  judge  or  clerk  of  a  Court  having  a  seal, 
or  some  notary  public  or  justice  of  the  peace :  provided,  when 
the  acknowledgment  is  taken  before  a  justice  of  the  peace  in 
any  other  county  than  that  in  which  the  real  estate  is  situated, 
the  same  shall  be  accompanied  with  the  certificate  of  the  clerk 
of  the  District  Court  of  such  county,  as  to  the  official  character 
of  the  justice  taking  the  proof  or  acknowledgment,  and  the  au- 
thenticity of  his  signature.  Married  woman — Required  to  make 
a  private  acknowledgment,  without  the  hearing  of  her  husband. 
NEW  HAMPSHIRE. — Execution — To  be  signed  and  sealed  by 
the  party  granting,  and  attested  by  two  or  more  witnesses.  Ac- 
knowledgment— Before  a  justice,  notary  public,  or  commissioner, 
or  before  a  minister  or  consul  of  the  United  States  in  a  foreign 
country.  (Gen.  Stat.  p.  251.)  Married  women — No  private 
examination  required. 


56       STATUTES  CONCERNING  ACKNOWLEDGMENTS.     §  49 


JERSEY.  —  Execution  —  Witnesses  are  not  necessary. 
Acknowledgment  —  Before  the  chancellor  of  the  State,  or  one  of 
the  justices  of  the  Supreme  Court,  or  one  of  the  masters  in 
chancery,  or  one  of  the  judges  of  any  of  the  Courts  of  Com- 
mon Pleas  of  this  State,  (Nixon's  Dig.  p.  144)  and  before  com- 
missioners in  the  State  appointed  for  this  purpose  by  the  gov- 
ernor. (Nixon's  Dig.  p.  153.)  Married  women  —  To  acknowl- 
edge, after  contents  oij  instrument  are  made  known  to  her, 
apart  from  her  husband,  that  she  signed,  sealed,  and  delivered 
the  same  as  her  voluntary  act  and  deed,  freely,  without  any  fear, 
threats,  or  compulsion  of  her  husband. 

NEW  YORK.  —  Execution  —  Witnesses  are  not  necessary  if 
deed  is  acknowledged.  Acknowledgment  —  Before  the  justices  of 
the  Supreme  Court,  judges  of  County  Courts,  mayors  and  re- 
corders of  cities,  or  commissioners  of  deeds  (justices  of  the 
peace  in  towns).  (2  R.  S.  6th  Ed.  1139.)  Also,  before  nota- 
ries public,  who  may  take  and  certify  without  seal.  (Laws 
1859,  Chap.  360.)  Also  before  surrogates,  justices  of  the 
Marine  Court,  and  the  District  Courts  in  New  Y,ork  city  ;  the 
judge  of  the  Court  of  Arbitration  in  New  York  city,  clerk  of 
the  City  Court  of  Brooklyn,  justices  of  the  Justices'  Courts  in 
the  city  of  Troy,  and  in  the  county  of  Albany,  or  justices  of 
the  Superior  Court  of  the  city  of  Buffalo.  (Laws  1851,  p. 
331;  1863,  pp.  91,  880;  1874,  p.  732;  1875,  pp.  123,  574.) 
Married  women  —  To  make  private  acknowledgment  to  relin- 
quish dower. 

NORTH  CAROLINA.  —  -Execution  —  No  conveyance  of  land 
shall  be  good  and  available  in  law  unless  the  same  shall  be  ac- 
knowledged by  the  grantor,  or  proved  on  oath  by  one  or  more 
witnesses,  and  registered  in  the  county  where  the  land  shall  lie, 
within  two  years  after  the  date  of  the  said  deed.  (Battle's 
Dig.  p.  351.  Acknowledgment  —  In  the  State  before  probate 
judge,  justice  of  the  Supreme  Court,  or  notary  public.  Married 
women  —  Private  examination  required.  (Battle's  Dig.  p.  355.) 
OHIO.  —  Execution  —  Must  be  signed  and  sealed  by  the 
grantor  or  grantors,  maker  or  makers,  and  such  signing  and 
sealing  shall  be  acknowledged  by  sucli  grantor  or  maker  in  the 
presence  of  two  witnesses,  who  shall  attest  such  signing  and 
sealing,  and  subscribe  their  names  to  such  attestation.  (1  Swan. 


§  49  STATUTES    CONCERNING    ACKNOWLEDGMENTS.  57 

&  C.  459.)  Acknowledgment — Before  a  judge  of  the  Supreme 
Court,  or  of  the  Court  of  Common  Pleas,  a  justice  of  the 
peace,  notary  public,  mayor,  or  other  presiding  officer  of  an  in- 
corporated town  or  city,  who  shall  certify  such  acknowledgment 
on  the  same  sheet  on  which  such  deed,  mortgage,  or  other  in- 
strument of  writing  may  be  printed  or  written.  Married  women 
— The  officer  before  whom  the  acknowledgment  is  made  shall 
examine  the  wife  separate  and  apart  from  her  husband,  and 
shall  read,  or  otherwise  make  known  to  her,  the  contents  of  such 
deed,  mortgage,  or  other  instrument  of  writing,  and  if,  upon 
such  separate  examination,  she  shall  declare  that  she  did  vol- 
untarily sign,  seal,  and  acknowledge  the  same,  and  that  she  is 
still  satisfied  therewith,  such  officer  shall  certify  such  examina- 
tion and  declaration  of  the  wife.  (1  Swan  &  C.  462.) 

OREGON. — Execution — Shall  be  executed  in  the  presence  of 
two  witnesses,  who  shall  subscribe  their  names  as  such.  Acknowl- 
edgment— Before  any  judge  of  the  Supreme  Court,  county  judge, 
justice  of  the  peace,  or  notary  public,  within  the  State.  (Gen. 
Laws,  p.  516.)  Married  women — A  husband  and  wife  may, 
by  their  joint  deed,  convey  the  real  estate  of  the  wife  in  like 
manner  as  she  might  do  by  her  separate  deed  if  she  were  un- 
married, but  the  wife  shall  not  be  bound  by  any  covenant  con- 
tained in  such  deed.  (Gen.  Laws,  p.  515.) 

PENNSYLVANIA. — Execution — Witnesses  usually  attest,  but 
if  the  grantor  makes  the  acknowledgment,  they  need  not  attest. 
Acknowledgment — Before  one  of  the  judges  of  the  Supreme 
Court,  or  before  one  of  the  justices  of  the  Court  of  Common 
Pleas  of  the  county  where  the  lands  conveyed  lie.  (Brightly's 
Purdon's  Dig.  p.  313.)  The  mayor  and  recorder  of  Philadel- 
phia may  take,  in  any  part  of  the  Commonwealth  (p.  314). 
Each  alderman  of  the  city  of  Philadelphia  can  take  in  any  part 
of  the  State,  and  a  justice  of  the  peace  in  his  proper  county. 
Notaries  public,  since  1863,  are  authorized  to  take  acknowledg- 
ments (p.  1297).  Married  women — Private  examination  re- 
quired. 

RHODE  ISLAND — Execution — Witnesses  not  necessary.  Ac- 
knowledgment— Before  a  senator,  judge,  justice  of  the  peace,  no- 
tary public,  or  town  clerk ;  and  if  the  person  conveying  the 
same  shall  be  without  this  State,  in  the  military  or  naval  service 


58       STATUTES  CONCERNING  ACKNOWLEDGMENTS.     §  49 

of  the  United  States,  the  same  shall  be  acknowledged  before 
any  colonel,  lieutenant-colonel,  or  major  in  the  army,  or  before 
any  officer  in  the  navy  not  below  the  grade  and  rank  of  lieuten- 
ant-commander. Married  women — A  private  examination  is  re- 
quired, when  the  deed  or  instrument  is  to  be  explained  to  her, 
and  she  shall  declare  she  does  not  wish  to  retract  the  same. 
(Gen.  Stat.  p.  330.) 

SOUTH  CAROLIN A.— Execution — No  witnesses  required.  Ac- 
knowledgment— Before  a  justice  of  the  Supreme  Court,  a  trial 
justice,  or  notary  public,  or  commissioner  of  deeds.  (Rev. 
Stat.  p.  422.)  Married  women — Private  acknowledgment  re- 
quired. 

TENNESSEE. — Execution — Witnesses  are  not  necessary.  Ac- 
knowledgment— Shall  be  made  before  the  clerk,  or  legally  ap- 
pointed deputy  clerk  of  the  County  Court  of  some  county  in 
the  State.  (Stat.  Sec.  2039.)  And  by  Sec.  2039a,  notaries 
are  given  power  to  take.  Married  women — A  privy  examina- 
tion required.  (Sec.  24866.) 

TEXAS. — Execution — The  conveyance  to  be  in  writing,  sealed 
and  delivered  ;  and  any  instrument  to  which  the  person  making 
the  same  shall  affix  a  scroll,  by  way  of  seal,  shall  be  adjudged 
and  holden  to  be  of  the  same  force  and  obligation  as  if  it  were 
actually  sealed.  (Paschal's  Dig.  Art.  997.)  Acknowledgment 
— Judges  of  the  Supreme  and  District  Courts,  chief  justice  of 
the  County  Courts,  clerks  of  the  County  Courts,  notaries  pub- 
lic. (Paschal's  Dig.  Arts.  1007,  1252.)  Married  women— To 
make  a  private  acknowledgment.  (See  form  in  Appendix.) 

VERMONT. — Execution — All  deeds  and  other  conveyances  of 
lands,  or  of  any  estate  or  interest  therein,  shall  be  signed  and 
sealed  by  the  party  granting  the  same,  and  signed  by  two  or 
more  witnesses.  Acknowledgment — Before  a  justice  of  the 
peace,  town  clerk,  notary  public,  or  master  in  chancery.  Mar- 
ried women — No  private  acknowledgment  required.  (Rev.  Stat. 
p.  448.) 

VIRGINIA. — Execution — Witnesses  are  not  necessary.  Ac- 
knowledgment— Before  a  justice  or  notary  public.  (Code,  p. 
569.)  Married  women — Are  required  to  make  a  separate  and 
private  acknowledgment. 

WEST  VIRGINIA. — Execution — Witnesses  are  not  required. 


§  49     STATUTES  CONCERNING  ACKNOWLEDGMENTS.      59 

Acknowledgment — Before  a  justice,  notary  public,  recorder, 
prothonotary,  or  clerk  of  any  Court  within  the  United  Spates,  or 
commissioner  appointed  within  the  same  by  the  governor.  (See 
form  in  Appendix.)  Married  women — To  have  a  private  exami- 
nation. (Code,  p.  470.) 

WISCONSIN. — Execution — Deeds  executed  in  this  State,  of 
lands  or  of  any  interest  in  lands  therein,  shall  be  executed  in 
the  presence  of  two  witnesses.  Acknowledgment — Before  any 
judge,  commissioner  of  a  Court  of  Record,  clerk  of  the  Board  of 
Supervisors,  notary  public  or  justice  of  the  peace,  clerk  of  the 
Circuit  Court,  or  the  clerk  of  the  Municipal  Court  of  the  city 
and  county  of  Milwaukee.  (2  Taylor's  Stat.  p.  1143.)  Mar- 
ried women — No  private  examination  required. 


ACKNOWLEDGMENT  OUT  OF  A  STATE,  BUT  WITHIN  UNITED 

STATES. 

An  acknowledgment  may  be  taken  out  of  a  State,  but  within 
the  United  States,  before  any  commissioner  of  the  State  where 
the  land  is ;  and  as  commissioners  are  appointed  by  the  States 
to  reside  in  other  States  for  this  purpose,  one  can  generally  be 
found.  In  addition,  notaries  public  are  authorized,  by  the  laws 
of  nearly  all  our  States,  to  take  the  acknowledgment  of  deeds 
for  record  in  other  States.  When  a  notary  takes  the  acknowl- 
edgment to  be  recorded  out  of  the  State,  a  certificate  should  be 
attached,  to  show  he  was  actually  such  notary,  and  certify  to 
the  genuineness  of  his  signature.  The  States  and  Territories 
where  an  acknowledgment  before  a  notary  in  another  State  will 
not  be  received  are  : 

Arizona,  which  requires  the  acknowledgment,  without  the 
Territory,  and  within  the  United  States,  to  be  before  "  some 
judge,  or  clerk  of  any  Court  of  the  United  States,  or  of  any 
State  or  Territory  having  a  seal,  or  by  any  commissioner  ap- 
pointed by  the  governor  of  this  Territory  for  that  purpose" 
(Compiled  Laws,  p.  360)  j  Delaware,  Florida,  Georgia,  Idaho, 
Louisiana,  Mississippi,  New  Mexico,  North  Carolina,  Utah,  and 
Washington  Territory. 

The  provision  of  the  California  Civil  Code,  Sec.  1182,  is  as 
follows  :  "  The  proof  or  acknowledgment  of  an  instrument  may 


60      STATUTES  CONCERNING  ACKNOWLEDGMENTS.     §  49 

be  made  Avithout  this  State,  but  within  the  United  States,  and 
within  the  jurisdiction  of  the  officer,  before  either :  1.  A.  justice, 
judge,  or  clerk  of  any  Court  of  Record  of  the  United  State  ;  or,  2. 
A  justice,  judge,  or  clerk  of  any  Court  of  Record  of  any  State  ; 
or,  3.  A  commissioner  appointed  by  the  governor  of  this  State 
for  that  purpose  ;  or,  4.  A  notary  public ;  or,  5.  Any  other 
officer  of  the  State  where  the  acknowledgment  is  made,  author- 
ized by  its  laws  to  take  such  proof  or  acknowledgment." 

The  laws  of  New  York  allow  acknowledgments  to  be  made 
before  the  same  persons.  In  addition,  an  acknowledgment  may 
be  made  before  the  mayor  of  any  city  in  the  United  States. 
(Laws  1845,  p.  89.) 

It  will  generally  be  found  that  the  persons  designated  in  the 
California  Civil  Code  as  capable  of  taking  acknowledgments 
out  of  the  State,  are  also  permitted  to  do  the  same  by  other 
States,  with  the  exception  of  notaries  public,  before  referred  to. 


ACKNOWLEDGMENTS  OUT  OF  THE  UNITED  STATES. 

Generally,  ministers  and  consuls  of  the  United  States,  abroad, 
can  take  acknowledgments  to  be  recorded  here  ;  and  also  judges 
of  Courts  of  Record.  The  provision  of  the  Civil  Code  of  Cali- 
fornia, Sec.  1183,  will  indicate  with  sufficient  certainty  the 
officers  that  are  generally  permitted  to  take  acknowledgments 
out  of  the  United  States.  The  Code  provides  an  acknowledg- 
ment may  be  before :  1.  A  minister,  commissioner,  charge 
d'affaires  of  the  Unitetl  States  resident  and  accredited  in  the 
country  where  the  proof  or  acknowledgment  is  made ;  or,  2.  A 
consul  or  vice-consul  of  the  United  States,  resident  in  the  coun- 
try where  the  proof  or  acknowledgment  is  made;  or,  3.  A 
judge  of  a  Court  of  Record  of  the  country  where  the  proof  or 
acknowledgment  is  made ;  or,  4.  Commissioners  appointed  for 
such  purpose  by  the  governor  of  the  State,  pursuant  to  special 
statutes ;  or,  5.  A  notary  public. 

By  statutes  of  New  York,  acknowledgments  in  foreign  coun- 
tries may  be  made  before  any  minister,  charge  d'affaires,  consul, 
vice-consul,  deputy  consul,  consular  agent,  vice-consular  agent, 
commercial  agent,  or  vice-commercial  agent  of  the  United  States 
Government,  resident  hi  any  foreign  port  or  country,  or  before  any 


§  49  STATUTES    CONCERNING   ACKNOWLEDGMENTS.  61 

commissioner  of  deeds  for  the  State  of  New  York  in  any  for- 
eign city.  (1  E.  S.  757 ;  Laws  1816,  p.  118  ;  1863,  p.  449  ; 
1865,  p.  776 ;  1875,  p.  119.) 

In  CANADA,  deeds  of  property  in  New  York  may  be  proved 
or  acknowledged  in  Canada  before  a  judge  of  the  highest 
Court  in  Upper  or  Lower  Canada  (Laws  1829,  p.  348)  ;  also 
before  any  United  States  consul,  the  judge  of  any  Court  of 
Record,  or  the  mayor  of  any  city  within  the  Dominion  who  will 
certify  the  same.  If  the  proof  or  acknowledgment  be  taken  by 
a  judge,  there  must  be  attached  a  certificate,  under  the  name 
and  seal  of  the  clerk  of  the  Court,  that  the  judge  is  a  judge 
thereof ;  that  such  Court  has  a  seal ;  that  he  is  the  clerk  thereof; 
that  he  is  well  acquainted  with  the  handwriting  of  such  judge, 
and  verily  believes  his  signature  genuine.  (1  Laws  1870,  p. 
503.) 

In  GREAT  BRITAIN  and  IRELAND,  the  party  may  acknowl- 
edge before  the  mayor  of  London,  Dublin,  Edinburgh,  or  Liv- 
erpool, or  before  the  officers  above  named.  (1  R.  S.  757.) 


62  AFFIDAVITS.  §  50 


CHAPTER  V. 

AFFIDAVITS. 

§  50.  Authority  to  take  given  notaries  by  statute. 

§  51.  Definition  of  affidavit. 

§  52.  The  venue. 

§  53.  Signature  by  affiant. 

§  54.  Oath  and  jurat. 

§  55.  Officer  qualified  to  take. 

§  56.  As  to  the  use  of  a  seal 

§  50.  The  authority  to  take  affidavits  is  given  to  no- 
taries by  statute  in  all  our  States ;  but  it  should  be  remem- 
bered this  authority  is  one  purely  derived  from  statute  law,  and 
did  not  appertain  to  the  office  originally ;  and  therefore  Courts 
cannot  take  judicial  notice  of  the  fact  that  notaries  are  author- 
ized to  take  affidavits,  outside  of  the  jurisdiction  of  those  Courts. 
So  the  Court  say  in  Keefer  -y.  Mason : 1  "  The  power  to  adminis- 
ter oaths  is  not  one  of  the  incidents  of  the  office  of  notary 
public  under  the  general  law  merchant,  nor  was  it,  as  far  as  we 
can  ascertain,  under  the  Roman  law,  from  which  the  office  is 
derived.  Where  that  power  is  annexed  to  the  office,  it  is  so  by 
virtue  of  positive  enactment,  and  we  cannot  presume  its  exist- 
ence in  the  absence  of  all  proof  or  ground  for  presumption."2 
It  is  not  usual  for  notaries  to  have  this  power  in  other  countries ; 
they  do  not  exercise  it  in  Canada,  for  there  are  "  commission- 
ers of  affidavits  "  appointed  for  that  purpose.3 

It  follows,  that  an  affidavit  taken  out  of  the  jurisdiction  of  the 
Court  cannot  be  recognized,  unless  the  authorized  and  official 
character  of  the  officer  is  authenticated.4  So  it  was  held,  in 
England,  that  when  an  affidavit  is  made  before  a  notary  abroad, 
the  signature  of  the  notary  must  be  verified  before  the  affidavit 
can  be  admitted.5  It  is  required  that  the  signature  shall  be 

1  36  HI.  408. 

2  To  the  same  point,  Blanchard  v.  Bennett,  1  Or.  328. 
s  Consolidated  Stat.  Canada,  p.  889. 

4  Behn  v.  Young,  21  Ga.  207. 

5  In  re  Davis'  Trusts,  L.  R.  8  Eq.  98. 


§  51  AFFIDAVITS.  63 

verified  by  a  consul ;  but  affidavits  on  behalf  of  the  plaintiff,  taken 
before  a  notary  public  in  America,  at  a  place  120  miles  distant 
from  the  residence  of  any  British  consul,  were  allowed  to  be 
filed  by  the  clerk  of  records  and  writs,  with  the  written  consent 
of  the  defendant.1 

In  Haggett  v.  Iniff,2  leave  was  asked  in  the  Court  of  Chancery 
to  file  certain  affidavits,  which  had  been  sworn  to  at  Geneva,  in 
the  county  of  Ontario,  in  the  State  of  New  York,  before  one 
Allen,  a  notary  public  of  that  place.  In  support  of  the  applica- 
tion there  was  read  a  certificate,  signed  by  the  English  consul  at 
New  York,  that  Allen  was,  at  the  date  of  the  certificate,  a  notary 
public  in  and  for  the  State  of  New  York,  to  Avhose  official  act 
credit  was  due.  On  a  former  occasion  this  affidavit  was  re- 
fused, because  it  did  not  appear  a  notary  public  had  power  to 
take  affidavits  ;  but  on  this  occasion  it  Avas  shown,  by  the  evi- 
dence of  the  consul-general  of  the  United  States  in  London,  that, 
according  to  the  laws  of  the  United  States,  a  notary  public  was 
duly  qualified  to  administer  oaths  and  take  affidavits  in  any  law 
proceedings  in  that  county.  Leave  was  then  granted  to  file 
the  affidavits. 

§  51.  Definition  of  affidavit. — An"affidavit  is  defined  in 
one  case  to  be  an  oath  in  writing  sworn  before  and  attested  by 
him  who  has  authority  to  administer  the  same,  and  hence,  if  the 
jurat  is  not  signed,  that  which  purports  to  be  an  affidavit  is  a 
mere  nullity.3 

In  Shelton  v.  Berry,4  it  is  defined  to  be  a  voluntary  oath 
reduced  to  writing,  and  taken  before  some  officer  who  has 
authority  to  administer  and  certify  the  same.  The  distinction 
between  an  affidavit  and  a  deposition  is  given  in  Stimpson  v. 
Brooks.5  It  is  there  said :  "  Deposition  is  a  generic  expres- 
sion., embracing  all  written  evidence  verified  by  oath,  and  thus 
includes  affidavits,  but  in  legal  language  a  distinction  is  main- 
tained in  Courts  of  Law  and  Chancery  between  depositions  and 

1  Lyle  v.  Elwood,  L.  R.  15  Eq.  07. 

2  31  Eng.  L.  &  Eq.  202.    Decided  in  1854. 

8Knapp  v.  Duclo,  1  Mich.  (X.  P.)  180.  The  letters  "  J.  P.  "  mean  a  justice  of 
the  peace ;  they  are  -well-known  abbreviations,  and  in  common  use.  Shattuck  v . 
People,  4  Scam.  478. 

4 19  Tex.  154. 

53Blatchf.  C.  C.  456. 


64  AFFIDAVITS  §§  52-53 

affidavits.  A  deposition  is  evidence  given  by  a  witness  under 
interrogatories,  oral  or  written,  and  usually  written  down  by  an 
official  person ;  while  an  affidavit  is  the  mere  voluntary  act  of 
the  party  making  the  oath,  and  may  be,  and  generally  is,  taken 
without  the  cognizance  of  the  one  against  whom  it  is  to  be 
used."1 

§  52.  The  venue. — It  is  presumed,  when  no  venue  is  stated, 
that  the  affidavit  was  taken  within  the  jurisdiction  of  the  officer 
taking  the  affidavit.2  So  it  is  held  that  the  absence  of  a 
venue  is  not  fatal  to  an  affidavit,  for  the  important  thing  is  that 
it  shall  appear  that  the  oath  was  administered  by  a  person 
authorized  to  administer  the  same  ;  and  the  omission  to  state 
the  venue  may  be  aided,  when  the  affidavit  is  offered  to  be  used 
in  legal  proceedings,  by  the  presumption  that  the  officer  acted 
within  his  jurisdiction,  and  on  a  prosecution  for  perjury,  by 
proof  extrinsic  to  the  paper.3 

This  proposition  is  not  accepted  by  the  New  York  Courts, 
for  it  has  been  held  there  that  an  affidavit  without  a  venue, 
verifying  a  complaint  taken  before  a  commissioner  of  deeds 
whose  residence  is  not  mentioned,  is  a  nullity,  and  no  presump- 
tion arises  that  an  affidavit  has  been  made  at  any  particular 
place.4 

§  53.  Signature  by  affiant. — In  the  absence  of  some  statute 
or  rule  of  Court  requiring  it,  a  signature  of  the  affiant  is  not 
essential,  though  usual.  If  reduced  to  writing,  and  certified  by 

iln  the  Code  of  Civil  Procedure  of  California,  Sec.  2003,  an  affidavit  is  denned 
to  be  "  a  written  declaration  under  oath  made  without  notice  to  the  adverse 
party." 

2  Parker  v.  Baker,  8  Paige,  428;  Mosher  v.  Heydrick,  45  Barb.  549;  Perkins  v. 
Collins,  3  N.  J.  Eq.  482.  The  venue  is  prima  facie  evidence  of  the  place  where 
the  affidavit  was  taken,  and  helps  out  the  omission  of  the  place  in  the  body  of 
an  affidavit.  Belden  v.  Devoe,  12  "Wend.  225,  note ;  Hall  v.  Davis.  44  111.  407. 
The  letters  "  ss"  usually  added  to  the  venue  are  held  not  to  be  essential,  though 
useful.  They  signify  to  wit,  and  fix  the  place  more  definitely  where  the  affidavit 
is  made,  to  show  it  is  within  the  jurisdiction  of  the  officer.  1  Chitty  on  PI.  248 ; 
1  Cow.  Tr.  505. 

8  Young  v.  Young,  18  Minn.  90.  In  this  case  there  are  full  citations  of  au- 
thorities. 

4  Lane  r.  Morse,  6  How.  Pr.  394;  Cooks  v.  Staats,  18  Barb.  407;  Vincent  v. 
People,  5  Park.  Cr.  88;  Thompson  v.  Burhans,  61  N.  Y.  52. 


§  54  AFFIDAVITS.  65 

the  officer  as  having  been  duly  sworn  fo,  it  is  valid.1  But  where 
by  the  terms  of  a  statute  a  signature  is  required,  the. affidavit 
must  be  subscribed  by  the  affiant,  or  it  is  a  nullity.  Thus,  a 
statute  requiring  a  creditor  or  claimant  to  take  and  subscribe 
an  oath  to  his  claim  or  charges,  is  not  complied  with  by  his 
subscription  to  the  written  memorandum  of  the  claim  or  charge, 
followed  by  a  certificate  or  jurat  stating  that  the  memorandum 
was  subscribed  and  sworn  to  in  open  Court,  but  which  certifi- 
cate is  not  subscribed  by  the  claimant  or  creditor,  but  only  by 
an  officer  administering  the  oath.2 

In  Hathaway  v.  Scott,3  in  chancery,  it  was  held  that  where 
the  verification  of  a  bill  or  petition  in  the  form  of  an  affidavit 
had  not  the  name  of  the  deponent  subscribed  to  the  foot  of  the 
affidavit,  it  was  defective.  But  this  decision  was  based  on 
former  rules  in  chancery,  which  required  a  deponent  to  sub- 
scribe his  name  or  mark  to  the  affidavit  before  it  was  certified 
by  the  master. 

§  54.  Oath  and  jurat. — An  affidavit  must  appear  upon  its 
face  to  have  been  taken  before  the  proper  officer  and  in  compli- 
ance with  all  legal  requisitions.4 

So,  a  paper  drawn  in  the  form  of  an  affidavit,  and  filed  as  one, 
but  not  signed  by  any  officer  authorized  to  administer  the  oath, 
cannot  be  treated  as  an  affidavit.5 

A  certificate  that  deponent  was  "  duly  sworn  "  implies,  until 
the  contrary  is  shown,  that  he  was  sworn  in  such  a  manner  as  to 
render  the  oath  binding  upon  the  conscience.6  In  Ohio,  a  stat- 
ute required  the  officer  before  whom  an  affidavit  is  taken,  "  to 
certify  that  it  was  sworn  to  or  affirmed  before  him,  and  signed  in 
his  presence  " ;.  but  in  a  case  it  appeared  that  the  certificate  was 
"  subscribed  and  sworn  to  before  me  this  12th  day  of  February, 

1  Milling   v.  Shaffer,  3  Denio,  60;  Shelton  v.  Berry,  19  Tex.  154;  Watts  v. 
Womack,  44  Ala.  G05;  Turpin  v.  Eagle  Creek  Co.  48  Ind.  45;  Brooks  v.  Snead, 
50  Miss.  410;  Ede  v.  Johnson,  15  Cal.  53;  Kenyon  v.  Virgil,  3  Johns.  540. 

2  Nave  v.  Patter,  41  Ind.  301. 
s  11  Paige,  173. 

4  State  r.  Greens,  15  N.  J.  L.  88  ;  Ladow  v.  Groom,  1  Denio,  429  ;  Davis  v.  Rich, 
2  How.  Pr.  86. 

5  State  Bank  v.  Hinckliffe,  4  Ark.  444  ;  Cantwell  v.  State,  27  Ind.  505  ;  McDer- 
maid  v.  Russell,  41  111.  490. 

6Fryatt  v.  Lindo,  3  Ewd.  239. 

NOTARIES — 5. 


66  AFFIDAVITS.  §  55 

A.  D.  1859  " ;  and  it  was  objected  that  it  did  not  comply  with 
the  statute  in  stating  that  it  was  in  the  officer's  presence,  but  it 
was  held  that  it  was  sufficient,  as  the  expression  used  implied 
the  act  was  done  in  the  presence  of  the  officer.1  But  where  the 
jurat  of  an  affidavit,  taken  before  a  justice  of  the  peace,  was 
"  sworn  and  subscribed  this,"  etc.,  omitting  the  words  "  before 
me,"  it  was  decided  that  the  omission  of  such  words  rendered 
the  affidavit  a  nullity.2 

Where  an  officer  certifies  that  more  persons  than  one  took  an 
oath,  it  is  not  necessary  that  he  should  certify  that  they  "  sev- 
erally "  swore,  the  use  of  that  word  not  affecting  the  sense.3 

In  Kleber  v.  Block,4  the  following  affidavit  was  held  sufficient : 

"  STATE  OF  INDIANA,  Allen  County,  ss. 
"  Personally  came  before  the  undersigned,  a  notary  public  of 
said  county,  Christopher  Kleber,  who  upon  his  oath  saith  he  is 
justly  indebted  to  the  within  Adam  Block,  in  the  sum  specified 
in  the  within  power  of  attorney,  and  that  he  does  not  confess 
judgment  thereon  for  the  purpose  of  defrauding  his  creditors. 

"CHRISTOPHER   KLEBER. 

"  Witness  my  hand  and  seal,  February  19th,  1859. 
"  [SEAL]  GEO.  K.  HENTMAN,  Notary  Public. 

It  was  contended  that  the  foregoing  affidavit  was  bad  for 
want  of  a  jurat.  The  Court,  however,  held  that  the  signature 
and  seal  of  the  notary  apply  to  the  jurat,  to  the  certifying  part 
of  the  writing  signed  by  Block,  and  was  therefore  sufficient. 

§  55.  Officer  qualified  to  take. — When  the  statute  does 
not  designate  the  particular  officer  by  whom  a  required  oath 
may  be  administered  and  certified,  it  may  be  taken  before  any 
officer  having  general  authority  to  administer  and  certify  oaths.5 
Whether  the  attorney  of  a  party,  who  is  also  a  notary  public, 
can  take  the  affidavit  to  a  pleading  in  the  cause  is,  as  a  general 
rule,  denied ; 6  but  if  he  only  be  counsel  in  the  cause,  and  not 

1  Sargent  v.  Townsend,  2  Disney,  472. 
.  2  Smart  v.  Howe,  3  Mich.  590. 
» Randall ».  Baker,  20  N.  fl.  335. 
*17  Ind.  294. 

s  "Wood  v.  Jefferson  Co.  Bank,  9  Cowen,  204. 
«  Taylor  v.  Hatch,  12  Johns.  340;  Den  v.  Geiger,  4  Halst.  225. 


§  56  AFFIDAVITS.  67 

the  attorney  of  record,  he  is  not  disqualified.1  It  is  held,  how- 
ever, in  California,  in  Kuhland  v.  Sedgwick,2  that  the  'attorney 
of  the  plaintiff,  being  a  notary  public,  may  take  the  affidavit 
verifying  the  complaint ;  and  in  Minnesota,  in  Young  v.  Young,3 
it  was  held  that  the  attorney  of  record,  being  a  notary  public, 
could  take  an  affidavit  of  a  service  of  summons. 

§  56.  As  to  the  use  of  a  seal. — Whether  a  seal  is  required 
or  not  by  the  notary  will  depend  upon  the  statutory  require- 
ments of  his  State ;  but,  as  a  general  rule,  in  all  our  States,  a 
seal  is  required.  Thus,  in  Iowa,  in  Tunis  v.  Withrow,4  a  seal 
was  held  indispensable,  the  Court  saying :  "  We  consider  that 
the  official  acts  of  a  notary  public  should  be  authenticated  by 
seal  and  signature,  and  that  an  affidavit  is  not  proved  to  have 
been  made  unless  the  jurat  is  authenticated  by  both  such  seal 
and  signature."  In  Stout  v.  Slattery,5  it  was  held,  that  if  an 
oath  be  administered  by  a  notary  public,  his  signature  to  the 
jurat,  without  his  seal  of  office,  will  be  sufficient  within  the 
county  of  his  residence ;  but  if  it  be  used  out  of  the  county,  his 
seal  of  office,  or  some  other  evidence  of  his  official  character, 
will  be  indispensable. 

1  "Willard  v.  Judd,  15  Johns.  531;  People  v.  Spalding,  2  Paige,  326. 

2  17  Cal.  123. 
8  18  Minn.  90. 

4  10  Iowa,  305.    To  the  same  point,  Chase  v.  Street,  Id.  593. 

5  12  111.  162. 


68  DEPOSITIONS.  §  57 


CHAPTEE  VI. 

DEPOSITIONS. 

§  57.  Notaries  may  take  depositions. 

§  58.  As  to  the  caption. 

§  59.  Mistakes  in  names  of  parties  in  captfon. 

§  60.  Should  state  at  whose  request  deposition  taken. 

§  61.  The  certificate  generally. 

§  62.  Immaterial  omissions  in  the  certificate. 

§  63.  As  to  swearing  the  witness. 

§  64.  The  identity  of  the  witness. 

§  65.  "Writing  out  the  deposition. 

§  66.  The  manner  of  writing  out. 

§  67.  Language  of  the  deposition. 

§  68.  Presence  of  parties. 

§  69.  Place  where  taken. 

§  70.  Powers  of  notaries  in  taking  depositions. 

§  71.  Adjournment. 

§  72.  The  deposition  should  be  subscribed. 

§  73.  Certification  of  official  character  of  officer. 

§  74.  Certain  States  require  a  certification. 

§  75.  Return  of  the  deposition. 

§  57.  Notaries  may  generally  take  depositions ; 1  and  it 
will  therefore  be  useful  to  examine  some  of  the  decisions  of  the 
Courts,  touching  their  duties  in  this  respect.  It  is  not  intended 
to  treat  in  general  the  subject  of  depositions,  which  is  now  a 
large  topic  in  the  law,  "but  merely  to  refer  to  those  decisions  re- 
garding the  execution  and  return  of  a  commission  to  take  the 
deposition  of  a  witness.  A  great  many  decisions  on  this  point 
are  given  on  some  particular  form  required  by  a  statute,  which 
may  not  be  general ;  but,  as  far  as  possible,  there  will  be  exam- 
ined, in  the  present  chapter,  cases  that  have  a  general  application, 
whatever  be  the  special  requirements  of  the  statute.  When- 
ever a  decision  is  based  on  any  special  requirement,  not  of  gen- 
eral use,  the  fact  will  be  noted. 

In  the  forms,  it  will  be  found  there  are  two  particulars  re- 
quiring careful  attention :  that  is,  the  proper  writing  of  the  cap- 
tion, and  the  certificate  at  the  end  of  the  deposition,  where  the 

1  As  to  what  States  permit  depositions  to  be  taken  by  notaries,  see  Sec.  20. 


§§  58-59  DEPOSITIONS.  69 

officer  states  in  substance  the  steps  taken ;  and  the  mode  of  ex- 
ecution, in  taking  the  witness'  deposition. 

§  58.  As  to  the  caption. — The  caption  should  state  the  title 
of  the  cause,  the  Court,  the  names  of  the  parties,  and  at  whose 
instance  the  deposition  was  taken.1  In  New  Hampshire,  it  is 
held  that  the  caption  of  a  deposition  should  set  forth  in  whal; 
Court  the  action  is  pending,  a  sufficient  description  of  the  house 
or  office  where  the  deposition  is  taken,  that  the  statutory  oath 
was  administered,  and  whether,  if  the  defendant  was  not  pres- 
ent, he  objected  or  not.2  But  this  is  more  than  is  required  gen- 
erally in  other  States.  However,  the  title  of  the  cause  should 
appear  in  the  caption ;  a  mere  recital  that  the  deposition  is  taken 
"  in  compliance  with  the  annexed  commission  "  is  not  sufficient.3 
When  the  deposition  does  not  thus  show  any  particulars  to  con- 
nect it  with  the  cause  in  which  it  is  offered,  it  should  be  refused 
admission  in  evidence.4 

Some  decisions  are  strict  in  requiring  the  names  of  the  parties 
to  the  suit  to  appear  either  in  the  caption  or  certificate.  So  it 
is  held,  in  Waskern  v.  Diamond,5  that  great  strictness  is  required 
in  depositions  taken  under  the  Act  of  Congress  of  1789,  and  if 
the  names  of  all  the  parties  to  the  suit  do  not  appear  in  the 
caption,  or  some  part  of  the  deposition,  the  omission  is  fatal. 
But  a  deposition  will  be  admissible  in  evidence,  although  the 
name  of  the  case  did  not  appear  in  the  caption  of  the  answer, 
it  appearing  at  the  head  of  the  interrogatories  and  in  the  body 
of  the  commission,  and  the  whole  being  attached  together.6 

§  59.   Mistakes  in  names  of  parties  in   the  caption, 

when  not  sufficient  to  raise  any  doubt  as  to  their  identity,  will 
not  be  fatal ;  as  when  the  Christian  name  of  one  of  the  party 
defendants  was  written  Edward  instead  of  Edwin,  the  deposi- 
tion was  received  in  evidence.7  So  a  mistake  in  the  initial  let- 

1  Peyton  v.  Veith,  2  Cranch  C.  C.  123;  Knight  v.  Nichols,  34  Me.  208;  Haskins 
v.  Smith,  17  Vt.  2G3;  Whitney  v.  Sears,  16  Id.  687. 

2  Rand  v.  Dodge,  17  N.  H.  343. 

8  Slaughter  v.  Puvenbank,  35  Tex.  68. 

4  Plimpton  v.  Somerset,  42  Vt.  35. 

5 1  Hemp.  701. 

6  Johnson  v.  Clarke,  22  Ga.  541 ;  Henderson  u.  Cargill,  31  Miss.  367. 

"  Mann  v.  Birchard,  40  Vt.  32G. 


70  DEPOSITIONS.  §  60 

ter  of  the  middle  name  of  one  of  the  parties  will  not  be  suf- 
ficient to  exclude  the  deposition ; l  and  it  is  no  ground  for  reject- 
ing a  deposition  because  the  plaintiff  is  named  therein  C.  M. 
Grimes,  instead  of  Chilton  M.  Grimes,  as  in  the  pleadings  and 
dedimus  ;  2  nor  will  it  be  excluded  because  the  caption  gives  the 
names  of  the  defendants  as  A.  B.  and  C.  D.  Smith.3 

Where  the  plaintiffs  in  the  suit  were  described  in  the  writ  as 
"  a  corporation  duly  established  by  an  act  of  the  legislature  of 
the  State  of  Connecticut,"  and  the  caption  of  the  deposition  of- 
fered as  evidence  described  the  plaintiffs,  at  whose  request  the 
deposition  was  taken,  as  "  a  corporation  established  in  the  State 
of  Massachusetts,"  it  was  held  that  this  discrepancy  was  no 
cause  for  rejecting  the  deposition.4 

§  60.  The  caption  should  state  at  whose  request  the 
deposition  was  taken. — It  is  held,  in  Massachusetts,  that  if 
the  caption  does  not  state  at  whose  request  the  deposition  was 
taken,  it  is  imperfect,  and  the  deposition  cannot  be  used.5  This 
decision,  however,  was  based  on  their  statute,  which  requires 
that  the  officer  shall  insert  the  names  of  the  person  at  whose  re- 
quest the  deposition  was  taken.6  This  will,  therefore,  be  au- 
thority, whenever  a  similar  statutory  requirement  exists.  It  has 
been  decided  in  Maine,  where  there  was  no  such  statutory  re- 
quirement, that  a  deposition  is  not  to  be  rejected  merely  because 
its  caption  omits  to  state  at  whose  request  it  was  taken.7  The 
Court,  in  the  case,  said :  "  But  in  K.  S.  Chap.  133,  Sec.  17,  the 
facts  required  to  be  stated  therein  are  specifically  set  forth,  and 
this  is  not  among  those  statutory  requirements,  and  we  have 
neither  the.  power  nor  the  inclination  to  increase  their  number." 

In  a  Vermont  case,  the  admission  of  a  deposition  taken  in  New 
Hampshire  was  objected  to  on  account  of  the  informality  of  the 
caption,  which  did  not  contain  in  the  proper  place  the  name  of  the 
person  at  whose  request  it  was  taken ;  but  the  Court  said :  "  The 
certificate  of  the  magistrate  states  that  the  deposition  was  taken 

1  Field  v.  Tenny,  47  N.  H.  513. 

2  Grimes  v.  Martin,  10  Iowa,  347. 
8  Adams  v.  Flanagan,  3G  Vt.  400. 

4  Hayward  Rubber  Co.  v.  Duncklee,  30  Vt.  20. 
6  Welles  v.  Fish,  3  Pick.  74. 

6  Gen.  Stat.  1860,  p.  G76. 

7  Knight  u.  Nichols,  34  Me.  208. 


§§  61-62  DEPOSITIONS.  71 

at  the  request  of  the  plaintiff,  without  naming  him,  but  in  the 
other  part  of  the  same  certificate  it  is  stated  who  the  plaintiff 
was.  This,  we  think,  removes  all  doubt  in  regard  to  the  matter, 
and  the  place  where  it  was  to  be  used  is  sufficiently  apparent  to 
make  it  admissible."  l 

§  61.  The  certificate  generally  states  the  witness  was 
sworn  to  testify  the  truth  of  his  knowledge  of  the  matter  in 
controversy,  in  the  cause  for  which  taken ;  that  he  was  exam- 
ined, and  his  examination  reduced  to  writing,  read  to  and  sub- 
scribed by  him  in  the  presence  of  the  officer,  at  the  time  and 
place  specified  in  the  notice.2  The  statutory  requirements  must 
be  substantially  complied  with  to  render  the  deposition  availa- 
ble in  evidence.3  Where  a  notary's  certificate  stated  that  the 
depositions  of  witnesses  were  "  by  me  corrected,  as  by  them  re- 
quested," before  their  signature,  it  is  sufficient,  without  stating 
that  they  were  read  to  the  witness  before  signing.4 

Where  a  commissioner  certifies  that  the  witness  was  person- 
ally known  to  him,  "  and,  after  being  duly  sworn,  deposed  as 
set  forth  above  in  his  answers  to  the  annexed  interrogatories ; 
and  that  said  answers,  as  above  set  forth,  were  reduced  to  writ- 
ing, read  over  to,  approved  and  signed  by,  said  witness  in  his 
presence,"  the  certificate  shows,  prima  facie,  a  substantial  com- 
pliance with  the  requisites  of  the  statute.5  It  is  not  necessary 
that  the  names  of  the  witnesses  examined  should  be  stated  in  the 
certificate.  It  is  sufficient  if  they  are  referred  to  "  as  the  above 
named  deponents."6 

§  62.  Immaterial  omissions  in  the  certificate  will  not 
invalidate  it.  Thus,  the  omission  of  the  date  in  the  final  certifi- 
cate appended  to  a  deposition,  to  the  effect  that  it  was  read  over 
to  the  witness,  is  of  no  consequence  when  another  certificate 
appended  to  the  deposition  gives  the  date  when  it  was  sworn  to 

1  Harrison  v.  Nichols,  31  Yt.  709. 

2 Moss  v.  Booth,  34  Mo.  31G;  Stetson  v.  Lyons,  34  Ala.  140;  Thomas  v.  Wheeler, 
47  Mo.  363. 

SMcCrellis  v.  McCrellis,  38  Vt.  135;  Dye  >;.  Bailey,  2  Cal.  383;  Williams  v. 
Chadbourne,  6  Id.  559. 

*  Higgins  v.  Wortel,  18  Cal.  330. 

5  Roberts  «.  Fleming,  31  Ala.  683. 

oprather  v.  Pritchard,  26  Ind.  65. 


72  DEPOSITIONS.  §  63 

and  subscribed ;  especially  when  it  appears  that  the  deposition 
was  not  required  to  be  taken  at  any  given  time.1  So,  under  a 
statute  which  required  that  a  deposition  should  be  carefully 
read  to  and  subscribed  by  the  witness,  if  the  certificate  of  the 
officer  who  took  it  is  that  it  was  read  to  the  witness,  omitting 
the  word  "  carefully,"  the  deposition  will  not,  therefore,  be  ex- 
cluded. It  will  be  presumed  that  the  officer  performed  his  duty 
under  the  statute.2  The  caption  of  a  deposition  stated  "  the  ad- 
verse party  was  duly  notified  and  was  not,"  omitting  the  word 
"  present,"  it  may  be  obviously  understood,  and  it  cannot  be  re- 
garded as  substantially  defective.3  And  a  deposition  was  held 
not  to  be  insufficient  because  the  officer  taking  it  omitted  the 
word  "  presence  "  from  his  certificate — that  the  deposition  "  was 
reduced  to  writing  in  my,  and  by  the  said  deponent  sworn  to 
and  subscribed  in  my  presence."  4 

§  63.  As  to  swearing  the  -witness. — The  statutes  require 
that  the  fact  that  the  witness  was  sworn  shall  be  certified  to  by 
the  officer  taking  the  deposition ;  and  where  it  appears  that 
the  deponent  was  not  duly  sworn,  the  deposition  will  be  reject- 
ed.5 Many  of  the  decisions  are  very  strict  on  this  require- 
ment, holding  there  must  be  a  literal  compliance  with  the  stat- 
ute. Thus,  when  a  statute  required,  as  most  of  our  statutes  do, 
that  a  deponent  shall  be  sworn  "  to  testify  the  truth,  and  noth- 
ing but  the  truth,  relating  to  the  cause  or  matter  for  which  the 
deposition  is  to  be  taken,"  and  it  was  stated  that  "  the  deponent 
was  first  sworn  according  to  law  to  the  aforesaid  deposition  by 
him  subscribed,"  the  deposition  was  rejected.6  But  where  th< 
certificate  to  a  deposition  states  that  the  deponent  "was  swora 
to  testify  "the  whole  truth  of  his  knowledge  touching  the  mat- 
ters in  controversy  in  the  cause,"  it  was  held  to  be  an  imma- 
terial deviation  from  the  exact  requirements  of  the  statute  in 

1  Elgin  v.  Hill,  27  Cal.  372. 

2  Sheldon  v.  Wood,  2  Bosw.  267. 
»Kidder  v.  Blaisdell,  45  Me.  461. 
4  Stone  v.  Stilwell,  23  Ark.  444. 

6  The  witness  should  be  sworn  before  giving  his  deposition.  Armstrong  v. 
Burrows,  6  Watts,  266;  Stonebreaker  v.  Short,  8  Penn.  St.  155.  But  ib  Vermont 
it  is  immaterial  whether  sworn  before  or  after.  Barren  v.  Pettis,  18  Vt.  385. 

«  Parsons  v.  Huff,  38  Me.  137;  Brighton  v.  Walker,  35  Me.  132;  Erskine  v.  Boyd, 
Id.  511;  Fabyan  v.  Adams,  15  N.  H.  371;  Rainer  v.  Haynes,  1  Hemp.  689;  Put- 
nam v.  Larrimore,  Wright,  (Ohio)  746;  Simpson  v.  Carleton,  1  Allen,  109. 


§£  34-65  DEPOSITIONS.  73 

such  cases.1     It  has  been  held  that  a  certificate  that  the  depo 
nent  was  "  duly  sworn"  according  to  law,  imports  thatihe  form 
of  the  statute  was  properly  observed.2 

The  omission  of  a  commissioner  to  show  in  his  formal  cer- 
tificate that  the  witness  was  sworn,  is  no  ground  for  suppressing 
the  deposition,  when  the  commissioner  shows  in  the  preamble  to 
the  deposition  that  the  witness  was  by  him  cautioned  and  sworn 
to  speak  the  truth  and  nothing  but  the  truth,  the  whole  truth 
and  nothing  but  the  truth,  in  answer  to  the  interrogatories.3 

A  liberal  rule  is  held  in  Massachusetts  regarding  a  deposition 
taken  out  of  the  State.  It  is  held  that  if  the  deponent  was 
sworn,  it  is  not  necessary  to  follow  the  statutory  form.4 

§  64.  The  identity  of  the  •witness  is  in  some  places  re- 
quired to  be  certified  to,  as  in  Alabama,  California,  Delaware, 
and  Texas.  Unless  the  commissioner  certifies  to  his  personal 
knowledge  of  the  identity  of  the  witness,  or  that  proof  thereof 
was  made  before  him,  the  deposition  is  inadmissible.5 

§  65.  Writing  out  the  deposition. — The  statutes  forbid 
the  writing  out  of  the  answers  in  the  deposition,  by  any  one  a 
party  to,  or  interested  in,  the  suit.6  Thus,  when  it  appeared  that 
a  deposition  had  been  written  by  the  attorney  of  the  party  in 
whose  favor  it  was  to  be  read,  instead  of  by  the  commissioner 
designated  in  the  notice,  and  that  the  adverse  party  was  not 
present  at  the  time,  it  was  held  the  deposition  should  be  excluded.7 
It  is  held  that  a  party  in  whose  behalf  a  deposition  is  taken,  or 
his  attorney,  may  write  the  questions,  but  not  the  answers 
thereto.8  There  is,  however,  no  objection  to  a  witness  writing 

lAYelborn  v.  Swain,  22  Ind.  194. 

2Dennisonr.  Benner,  41  Me.  332;  New  Jersey  Ex.  Co.  v.  Nichols,  3  Vroom, 
166;  Ballard  v.  Perry,  28  Tex.  347.  The  officer  taking  a  deposition  must  certify 
that  the  witness  was  first  duly  sworn,  but  the  certificate  of  that  fact  may  be 
made  either  at  the  end  or  at  the  commencement  of  the  deposition.  House  v. 
Elliot,  6  Ohio  St.  497;  S.  P.  Doe  v.  King,  4  Miss.  125. 

3  Broadnax  v.  Sullivan,  29  Ala.  320. 

4  Stiles  v.  Allen,  5  Allen,  320  ;  Quinley  v.  Atkins,  9  Gray,  370. 
6  Buford  v.  Gould,  35  Ala.  265;  Parrelly  v.  Maria,  34  Id.  284. 

6  Steele  v.  Dart,  G  Ala.  798.    But  see  Donoho  v.  Petil,  1  Miss.  440. 

i  Hurst  v.  Larpin,  21  Iowa,  484.    See  Bank  v.  "Woods,  11  Penn.  St.  99. 

8  Snyder  v.  Snyder,  60  Ind.  492. 


74  DEPOSITIONS.  §§  66-67 

his  answers  himself.1  The  proper  person  to  write  out  the  depo- 
sition is  .the  officer  commissioned  to  take  it.  It  was  therefore 
held  that  depositions  taken  under  a  commission  executed  by 
commissioners,  one  of  whom  could  not  write,  were  not  admissi- 
ble in  evidence.2  But  when  it  appeared  that  the  magistrate 
who  took  a  deposition,  not  being  a  ready  penman,  called  in  a 
third  person,  who  was  disinterested,  who  wrote  the  answers  of 
the  witness,  the  magistrate  being  present  and  supervising,  it 
was  held  that  the  deposition  might  answer  the  requirements  of 
the  statute,  but  that  such  a  practice  might  be  liable  to  abuse, 
and  should  not  be  encouraged.3 

If  a  deposition  is  written  in  the  absence  of  the  magistrate, 
and  the  other  party  cross-examines  the  witness,  and  does  not 
object  to  the  informality  at  the  time,  the  deposition  may  be  put 
in  evidence.4 

When  a  commissioner  is  appointed  to  take  depositions,  it  is 
improper  for  the  witness  to  produce  his  deposition  written  by 
himself,  not  in  the  presence  of  the  magistrate.5 

§  66.  The  manner  of  -writing  out  the  deposition  is  in  a 

form  to  respond  to  certain  numbered  interrogatories,  the  answer 
being  given  to  a  certain  interrogatory  referred  to.  In  Califor- 
nia, it  was  held  that  there  could  be  no  objection  to  a  deposition 
taken  by  a  party  in  the  State  where  the  opposite  party  failed  to 
appear,  because  it  was  in  a  narrative  form,  and  not  taken  by 
question  and  answer.6  Where  the  commissioner  writes  down 
the  answers  of  two  witnesses  as  one  deposition,  though  it  be 
more  regular  to  write  them  separately,  yet,  if  both  have  signed 
and  sworn  to  everything  written  as  answers  to  the  several  ques- 
tions the  commission  is  good.7 

§  67.  Language  of  the  deposition. — Depositions  may  be 
taken  in  a  foreign  language  when  the  witnesses  are  unable  to 

iCarlylo  v.  Plumer,  11  Wis.  96;  Shropshire  v.  Stevenson,  17  Ga.  622;  Wilson 
v.  Smith,  «  Yerg.  379. 
2  Austen  v.  Carey,  23  Ga.  4. 
»  Cushman  v.  "SVooster,  45  N.  H.  410. 
*  Logan  v.  Steele,  3  Bibb,  230. 

6  Foster  v.  Foster,  20  N.  H.  208;  McEntire  v.  Henderson,  1  Penn.  St.  402. 
«  Pralus  v.  Pacific  etc.  Co.  35  Cal.  30. 
?  May  v.  Norton,  11  La.  An.  714. 


§  68  DEPOSITIONS.  75 

speak  English ;  when  introduced  in  Court  they  can  be  trans- 
lated by  a  sworn  interpreter.1 

Where  evidence  is  taken  by  a  commission,  and  it  appears  by 
the  answers  that  the  witness  does  not  understand  English,  the 
Court  will  presume,  in  the  absence  of  proof  to  the  contrary, 
that  the  commissioner  understood  the  language  of  the  witness.2 
But  if  the  person  taking  a  deposition  does  not  understand  the 
language  of  the  witness,  nor  the  witness  his  language,  an  in- 
terpreter must  be  sworn  to  interpret  between  them ;  and  that 
fact  must  appear  by  the  certificate  of  the  person  taking  the  de- 
position, and  cannot  be  supplied  by  his  affidavit  taken  after- 
ward.3 

§  68.  Presence  of  parties. — It  is  generally  required  that 
when  the  deposition  is  taken  in  the  State  where  the  trial  takes 
place,  it  shall  be  on  notice,  and  the  certificate  attached  must 
certify  if  such  notice  was  given.  So,  where  a  notary  public, 
before  whom  a  deposition  was  taken,  certified  that  the  ad- 
verse party,  living  more  than  twenty  miles  from  the  place 
of  caption,  was  duly  notified,  and  did  not  attend,  it  was 
held  that  this  was  sufficient  evidence  in  the  first  instance  of  the 
fact  of  such  notice,  open,  however,  to  contradiction.4  It  is  not 
necessary  to  set  forth  in  the  caption  that  the  taking  commenced 
at  the  hour  designated  in  the  notice.  It  is  sufficient  if  it  be 
certified  that  it  was  taken  at  that  hour.5 

But  when  the  deposition  is  taken  out  of  the  State,  it  is  held 
to  be  improper  for  the  party,  his  agent  or  attorney,  to  be  pres- 
ent, except  under  consent  or  stipulation ;  and  when  the  return 
stated  that  "  H.  C.  G.,  Esq.,  being  present  on  behalf  of  the 
plaintiff,"  the  deposition  should  have  been  excluded.6  In  many  of 
the  forms,  it  will  be  found,  it  is  required  of  the  officer  to  certify 

1  Cavasos  r.  Gonzales,  33  Tex.  133. 

2  City  etc.  Ins.  Co.  v.  Carrugi,  41  Ga.  660. 

3  Ainory  v.  Fellows,  5  Mass.  219.    The  questions  appended  to  a  commission 
sent  to  Bremen  were  in  English ;  the  commissioners  returned  the  answers  in 
German,  annexed  to  a  German  translation  of  the  questions ;  the  commission  was 
objected  to,  on  the  ground  that  the  return  should  have  been  in  English,  or 
accompanied  by  an  English  translation,  but    the    objection   was  overruled. 
Kuhtman  v.  Brown,  4  Rich.  S.  C.  479. 

4Lyon  v.  Ely,  24  Conn.  507. 

5  Scammonv.  Scammon,  33  X.  H.  52. 

6  Walker  r.  Barren,  4  Minn.  2o3. 


76  DEPOSITIONS.  §§  69-70 

as  to  this  fact,  as  in  Arkansas,  Indiana,  Kentucky,  and  Massa- 
chusetts. 

§  69.  Place  where  taken. — When  the  deposition  is  taken 
on  notice,  the  place  must  be  definitely  stated  in  the  notice,  and 
the  return  must  show  the  deposition  was  taken  at  such  place. 
Where  a  notice  had  been  given  that  a  deposition  would  be 
taken  at  the  office  -  of  Squire  Moore,  and  the  caption  and 
certificate  attached  showed  that  it  was  taken  at  the  office  of 
Enos  Moore,  it  was  held  that  the  deposition  should  be  sup- 
pressed, because  it  did  not  sufficiently  appear  that  it  was  taken 
at  the  place  named  in  the  notice.1  But  in  Wisconsin,  in  Fisk  v. 
Tank,2  it  was  held  that  a  deposition  is  not  invalidated  for  want 
of  a  venue  or  statement  of  the  place  of  taking,  either  in  its 
margin,  or  in  the  commissioner's  certificate.  But  it  appears 
that  this  deposition  was  taken  out  of  the  State,  and  the  case 
agrees  with  the  rule  laid  down. 

If  a  subpoena  issued  by  a  notary  for  a  witness  to  appear  be- 
fore him  and  give  his  deposition,  fails  to  specify  the  precise 
locality  where  the  notary  will  take  the  deposition-,  the  witness 
will  not  be  excused  for  non-attendance,  if  he  is  not  misled 
thereby.3 

§  70.  Powers  of  notaries  in  taking  depositions. — Nota- 
ries have  power,  in  a  majority  of  our  States,  to  take  depositions 
by  virtue  of  their  office.  This  power  clothes  them  with  certain 
necessary  authority,  in  order  to  properly  discharge  the  duty  com- 
mitted to  them.  They  have  therefore  the  right  to  issue  a  sub- 
posna  for  the  attendance  of  a  witness  whose  deposition  is  to  be 
taken  before  them.  But  what  further  power  do  they  possess  ? 
What  can  they  do  if  the  witness  refuse  to  attend,  or,  attending, 
refuse  to  answer  ?  In  some  places  the  statutes  give  express  au- 
thority to  an  officer  taking  a  deposition  to  enforce  the  attend- 
ance and  answers  of  a  witness ;  but  even  if  the  statutes  are 
silent  on  this  point,  it  must  be  a  power  incidental  to  the  office 
with  which  the  notary  is  clothed,  for  the  time  being,  to  enforce 
the  attendance  and  the  answers  of  a  witness.  Thus,  in  a  late 

i  McClintock  v.  Crick,  4  Iowa,  453;  2 12  Wis.  276. 

8  Keisher  v.  Ayres,  46  Cal.  82. 


§  70  DEPOSITIONS.  77 

case  in  Kansas,  the  deposition  of  a  party  was  to  be  taken  before 
a  notary  public.  The  party  attended  before  the  notary*  but  re- 
fused to  be  examined,  whereupon  the  notary  committed  him  to 
the  custody  of  the  sheriff,  as  keeper  of  the  common  jail,  for  con- 
tempt. He  was  then  brought  up  on  a  habeas  corpus,  and  it  was 
decided  the  committal  was  legal.1  It  is  to  be  observed  that 
the  statute  in  Kansas  does  not  expressly  confer  this  power,  only 
as  it  is  incidental  to  the  authority  conferred  on  the  officer  to 
take  depositions. 

The  same  question  has  come  before  the  Court  on  three  occa- 
sions in  Missouri.  In  Ex  parte  McKee,2  it  was  held  that  a 
notary  public,  being  an  officer  authorized  to  take  depositions, 
has  authority  to  commit  a  witness  for  refusing  to  answer  any 
questions  other  than  those  which  it  is  his  personal  privilege  to 
refuse  to  answer.  But  in  Ex  parte  Mallinkrodt,3  it  was  held 
that  a  notary  public  has  no  power  to  commit  a  witness  for  re- 
fusing to  produce  books  and  papers  under  a  subpoena  duces 
tecum.  I  cannot  but  regard  this  decision  as  of  very  doubtful 
authority,  in  view  of  the  previous  case,  and  one  presently  to  be 
noticed,  for  the  distinction  is  purely  arbitrary.  In  a  late  case  in 
the  same  State,  Ex  parte  Munf  ord,4  it  was  decided  that  in  a  pend- 
ing suit  a  notary  public  has  power  to  enforce  the  attendance  of 
witnesses  to  give  their  depositions,  and  can  compel  them  by  im- 
prisonment to  answer  any  questions  not  violative  of  personal  priv- 
ilege. These  decisions  in  Missouri  are  based  upon  the  express 
power  in  their  statute  given  to  officers  taking  depositions.  But  it 
cannot  be  denied  that  officers  who  have  power  to  issue  a  subpoena 
for  witnesses  to  give  their  depositions  before  them  must  have,  irre- 
spective of  any  statutory  express  power,  a  right  to  enforce  obe- 
dience to  their  subpoena,  otherwise  their  official  duties  could  not 
be  properly  discharged.  The  provisions  of  the  Code  of  Civil 
Procedure,  in  California,  give  power  to  officers  taking  deposi- 
tions to  enforce  obedience  to  their  subpoena.  In  Sec.  2031,  it  is 
provided  that  depositions  in  the  State  may  be  taken  before  a 
judge,  or  officer  authorized  to  administer  oaths ;  then,  in  Sec. 
1986,  it  is  provided  that  a  subpoena  may  issue  in  certain  cases, 
one  of  which  is  to  require  the  attendance  out  of  Court  before  a 

i  In  re  Abeles,  12  Kan.  451.  3  20  Mo.  493. 

2 1 8  Mo.  599.  <  57  Mo.  673. 


78  DEPOSITIONS.  §  71 

judge,  justice,  or  other  officer  authorized  to  administer  oaths  or 
take  testimony  in  any  matter  under  the  laws  of  the  State, 
and  such  subpoena  is  issued  by  the  officer  before  -whom  the  at- 
tendance is  required.  In  Sec.  1991,  a  provision  is  made  for 
punishing,  as  for  a  contempt, by  the  officer  issuing  the  subpoena, 
disobedience  to  the  subpoena,  or  a  refusal  to  be  sworn,  or  to 
answer  as  a  witness,  or  to  subscribe  an  affidavit  or  .deposition 
when  required. 

Therefore,  as  notaries  are  empowered  to  take  depositions, 
being  officers  authorized  to  administer  oaths,  they  can  exercise  the 
power  given  officers  in  the  last  section.  They  cannot,  however, 
exercise  such  power  when  acting  under  a  foreign  commission, 
for  in  such  a  case  they  are  not  authorized  to  issue  a  subpoena.1 

It  has  been  held  in  Indiana,  and  no  doubt  the  same  would  be 
so  held  everywhere,  that  an  officer  taking  a  deposition  cannot  de- 
cide legal  questions,  as  whether  a  witness  be  competent.2 

§  71.  Adjournments. — Usually,  the  notice  to  take  the  dep- 
osition of  a  witness  states  that  the  meeting  may  be  adjourned 
from  day  to  day,  until  the  deposition  is  completed ;  and  an  ad- 
journment other  than  this,  except  with  the  consent  of  both 
parties,  will  be  unlawful.3  So,  where  a  notice  to  take  deposi- 
tions recites  that  the  taking  will  be  commenced  on  a  certain  day, 
and  continued  from  day  to  day  thereafter  until  completed,  an 
adjournment  for  a  longer  time  will  be  unauthorized,  and  will 
subject  the  depositions  so  taken  to  suppression  unless  the  oppo- 
site party  appear  and  waive  such  objection.4  But  when  a  dep- 
osition was  begun  in  the  presence  of  both  parties,  but  too  late 
in  the  day  to  get  through,  and  the  witness  was  necessarily  called 
off  the  next  day,  and  the  party  against  whom  the  deposition 

1  Code  of  Civil  Proced.  Sec.  2036. 

2  Carpenter  ».  Dame,  10  Ind.  125. 

8  Where  notice  is  given  to  take  depositions  on  a  certain  day,  continuing  from 
day  to  day  until  they  are  completed,  if  there  is  a  continuance  from  day  to  day 
for  several  days  in  the  taking  of  a  deposition,  it  must  appear  upon  the  record 
•what  was  done  each  day,  and  that  there  was  good  cause  for  the  delay,  or  the 
deposition  ought  to  be  suppressed.  Bracken  v.  March,  4  Mo.  74. 

4  Raymond  v.  Williams,  21  Ind.  241.  See,  to  the  same  point,  Parker  v.  Hayes, 
23  K  J.  Eq.  186;  King  v.  State,  15  Ind.  64. 

A  commission  directing  commissioners  to  take  a  deposition  on  a  certain  day, 
and  continue  from  day  to  day  until  completed,  does  not  authorize  them  to  ad- 
journ to  a  day  beyond  the  next  succeeding.  Harding  v.  Merrick,  3  Ala.  CO. 


§  72  DEPOSITIONS.  79 

was  to  be  used  would  not  agree  on  a  future  time  to  finish  it, 
and  it  was  then  announced  that  some  other  deposition  would  be 
taken  on  the  following  day,  so  as  to  preserve  the  right  to  ad- 
journ over  until  the  next  day,  when  the  deposition  of  the  first 
witness  should  be  finished,  the  deposition  thus  completed  on  the 
third  day  was  held  admissible  in  evidence.1 

It  is  irregular,  in  taking  depositions,  to  adjourn  from  the  place 
where  the  adverse  party  has  been  served  with  notice  to  attend, 
to  another  place  in  the  absence  of  such  party.2  In  Wixon  v. 
Stephens,3  it  is  held  that  the  practice  of  adjourning  the  exam- 
ination of  witnesses  by  the  commissioner,  to  another  town  from 
that  designated  for  the  purpose,  without  the  consent  of  parties, 
is  of  questionable  propriety,  and  not  to  be  encouraged;  but 
when  a  party  did  not  attend  at  the  time  and  place  designated, 
and,  owing  to  the  absence  of  one  of  the  witnesses,  the  commis- 
sioner adjourned  the  examination  to  another  day  and  another 
place,  within  the  county ;  and  on  such  adjourned  day  proceeded 
to  take  the  testimony,  it  was  held  that  if  the  party  had  in  any 
way  been  injured  by  the  adjournment,  his  remedy  was  to  apply 
to  the  Court  to  suppress  the  depositions. 

The  person  authorized  to  take  a  deposition  may  adjourn  the 
time  of  taking  at  his  discretion,  even  though  neither  party  ap- 
pear at  the  time  first  appointed,  provided  a  reasonable  notice  be 
given  to  the  parties.4 

§  72.  The  deposition  should  be  subscribed,  or  it  cannot 
be  admitted  in  evidence.  So,  where  an  officer  taking  a  deposi- 
tion does  not  certify  that  it  was  signed  by  the  witness,  it  is  not 
admissible  in  evidence.5  A  deposition  purporting  to  set  out  the 
answers  of  a  witness  to  the  interrogatories  and  cross-interroga- 
tories, but  not  subscribed  by  him,  accompanied  by  a  certificate 
of  the  commissioner  stating  that  the  said  witness,  "  after  having 
read  over  the  answers  of  B,  did  solemnly  swear  that  he  would 
adopt  them,  but  the  steamboat  on  which  he  was  going  up  the 

1  Jarboe  v.  Colvin,  4  Bush,  70. 

The  reason  for  the  adjournment  should  be  given.    Kisskadden  v.  Grant,  1 
Kan.  323. 

2  Beach  v.  Workman,  20  N.  H.  379. 
8 17  Mich.  518. 

*  Pindar  v.  Barlow,  31  Vt.  529. 
6  Thompson  v.  Haile,  12  Tex.  139. 


80  DEPOSITIONS.  §  72 

river  left  before  he  could  subscribe  them  after  I  had  written 
them  off,"  was  held  not  admissible  in  evidence.1 

§  73.   Certification  of  official  character  of  officer. — The 

statutes  are  not  uniform  as  to  how  the  official  character  of  the 
officer  taking  the  deposition  shall  be  made  to  appear.  Many 
States  do  net  insist  upon  anything  further  than  the  officer's  own 
certificate  as  to  his  official  character ;  this  being  accepted  as 
prima  facie  evidence  of  his  capacity  as  such  officer  to  take  the 
deposition.2  Thus,  a  deposition  purporting  to  have  been  taken 
in  the  State  and  county  named  in  the  commission,  and  certified 
by  the  person  taking  it,  with  his  name,  and  the  letters  "  J.  P.," 
is  sufficiently  authenticated.3  So,  when  the  parties  to  a  suit 
agree  that  a  deposition  may  be  taken  at  a  certain  place,  during 
a  certain  month,  before  T,  a  notary  public  in  another  State,  the 
deposition  certified  by  T  may  be  read  by  either  party  without 
other  proof  that  T  was  a  notary  when  the  deposition  was  taken.4 
And  a  recent  case  in  Nebraska  holds  that  depositions  taken  in 
Illinois  by  a  notary  public,  certified  under  his  hand  and  official 
seal,  may  be  read  in  evidence  without  further  authentication.6 
The  seal  of  a  notary  public,  attesting  his  certificate  to  a  deposi- 
tion, need  not  be  impressed  upon  wax ;  an  impression  upon  the 
paper  is  enough.6 

When  the  commission  is  directed  to  certain  persons  named 
therein,  no  authentication  is  required :  their  signatures  and  seals 
are  sufficient ;  but  it  must  appear  that  the  person  returning  the 
deposition  is  the  identical  person  to  whom  the  commission  was 
directed.  Thus,  a  deposition  directed  to  George  Dunlair,  but 
taken  by  George  Dunbar,  was  held  inadmissible  in  evidence, 
though  Dunbar  was  the  man  intended.7  And  depositions  taken 
before  a  commissioner  of  deeds  in  another  State,  appointed  by 

1  Bell  v.  Chambers,  38  Ala.  G60. 

2  Dean  v.  Dygert,  1  A.  K.  Marsh.  172  ;  Clement  v.  Durgin,  5  Me.  9  ;  Savage  t. 
Balch,  8  Id.  27  ;  Adams  v.  Graves,  18  Pick.  355  ;  Allen  v.  Perkins,  17  Id.  3G9  ; 
State  v.  Kimball,  50  Me.  409  ;  Hoover  v.  Rawlings,   1  Sneed,  287. 

«Hobbs  v.  Shumates,  11  Gratt.  516. 

4  Sargent  v.  Collins,  3  Nev.  260. 

5  Martin  v.  Coppock,  4  Neb.  173. 

6  Myers  «.  Russell,  52  Mo.  26. 

•  Breyfogle  v.  Beckley,  16  S.  &  R.  264. 


§  74  DEPOSITIONS.  81 

the  State  where  the  deposition  is  offered  in  evidence,  are  suffi- 
ciently authenticated  by  such  commissioner's  own  certificate.1 

§  74.  Certain  States  require  a  certification  of  official 
character,  showing  that  the  officer  certifying  to  the  deposition 
was  in  fact  such  officer  as  he  claims  to  be.  In  the  forms  will 
be  found  the  provisions  of  the  statutes  of  the  States  where  this  is 
required.  This  certification  is  necessary  where  a  commission  is 
directed  to  an  officer  by  his  official  designation,  without  naming 
the  individual.  Thus,  by  the  laws  of  Colorado,  when  a  judge  or 
justice  of  the  peace  acts  as  a  commissioner,  his  official  character 
must  be  certified  to  under  the  great  seal  of  the  proper  Court  of  the 
county  or  city  where  such  deposition  is  taken.2  So,  in  Illinois, 
when  any  deposition  shall  be  taken  by  any  judge,  master  in  chan- 
cery, notary  public,  or  justice  of  the  peace  out  of  the  State,  or 
other  officer,  the  return  shall  be  accompanied  by  a  certificate  of 
his  official  character,  under  the  great  seal  of  the  State,  or  under 
the  seal  of  the  proper  Court  of  record  of  the  county  or  city 
wherein  such  deposition  shall  be  taken.3  Similar  provisions  will 
be  found  in  the  statutes  of  Iowa,  Louisiana,  Missouri,  New  Hamp- 
shire, and  Virginia.  In  the  States  of  Kansas,  Nebraska,  and 
Ohio,  and  in  the  Territory  of  Wyoming,  the  officers  may  certify 
with  their  own  seals,  if  they  have  any,  but  if  not,  their  official 
signatures  must  be  authenticated.4 

As  we  pointed  out  above,  in  Louisiana,  when  depositions  are 
submitted,  purporting  to  be  taken  before  a  justice  of  the  peace, 
a  certificate  must  accompany  them  showing  that  such  person 
was  in  fact  the  officer  he  represents  himself  to  be.5  In  New 
Hampshire,  a  certificate  of  a  county  clerk  in  New  York,  under 
the  seal  of  the  county,  was  held  competent  evidence  to  show 
that  an  individual,  who  had  acted  as  a  magistrate  in  taking  a 

1  Johnson  v.  Cocks,  7  Ark.  G72  ;  Den  v.  Lloyd,  31  N.  J.  L.  395.  At  the  conclu- 
sion of  a  commission,  the  commissioner  signed  his  name  "  A  B,  Notary  Public," 
but  indorsed  the  commission  as  follows:  "The  execution  of  this  commission 
appears  in  a  certain  schedule  hereto  annexed.  A  B,  Comm'r."  It  was  held 
that  this  was  sufficient.  Munroe  v.  Woodruff,  17  Md.  159. 

-  Rev.  Stat.  p.  313.  Notaries  cannot  take  depositions  in  this  State  under  a 
commission. 

a  Rev.  Stat.  of  1874,  p.  494. 

4  See  statutory  provisions  of  these  States  in  the  forms. 

8  Succession  of  Grant,  14  La.  An.  795  ;  Morrison  v.  White,  16  Id.  100 

NOTARIES — 6. 


82  DEPOSITIONS.  §  75 

deposition,  was,  in  fact,  a  justice  of  the  peace.1  In  Wells  v. 
Jackson  etc.  Co.,2  it  was  held  that  the  authority  to  take  a  deposi- 
tion is  sufficiently  shown  by  proof  that  the  person  taking  it  was 
an  acting  commissioner  or  notary.  In  Vermont,  it  has  been  held 
that  a  deposition  taken  by  a  justice  of  the  peace,  under  a  foreign 
government,  does  not  authenticate  itself.3 

§  75.  Return  of  the  deposition. — In  some  of  our  States, 
it  is  required  that  the  return  of  the  commission  shall  be  indorsed 
on  the  commission  itself,  and  not  attached  to  it  on  a  separate 
paper ;  but  where  there  is  no  statutory  provision  requiring  it, 
the  return  may  be  made  on  a  separate  paper  attached.  So,  when 
the  return,  instead  of  being  indorsed  upon  the  commission  itself, 
was  written  upon  one  of  the  sheets  appended  by  the  commis- 
sioner, it  was  held  sufficient.4  In  New  York,  in  Pendell  v. 
Coon,5  it  was  held  that  the  return  of  a  commissioner  to  take 
testimony  need  not  be  indorsed  on  the  commission  itself,  nor  be 
on  a  paper  containing  the  depositions  annexed,  or  any  part 
thereof ;  but  where  it  is  necessary,  by  reason  of  the  paper  con- 
taining the  depositions  being  filled  thereby,  to  annex  an  inde- 
pendent sheet,  the  return  may  be  on  the  sheet  so  annexed.  But, 
in  this  case,  some  of  the  judges  held  that  in  case  there  was  suffi- 
cient space  on  the  deposition  for  the  return  to  be  written,  it 
should  be  inserted  there,  and  not  attached  on  a  separate  paper. 

In  Minnesota,  under  their  statute,  the  return  must  be  indorsed 

1  Dunlap  v.  "Waldo,  G  K  H.  450. 

2  47  N.  H.  235. 

8  Bown  v.  Bean,  1 D.  Chip.  176.    See  Baker  v.  Rickhart,  52  Ind.  594. 

The  office  of  a  county  clerk  is  incompatible  with  the  office  of  a  notary,  and  on 
his  acceptance  and  qualification  as  county  clerk,  the  office  of  notary  becomes 
ipso  facto  vacated ;  and  a  single  act  of  the  notary  in  taking  a  deposition,  after 
his  acceptance  of  the  office  of  county  clerk,  will  not  make  him  a  notary  public 
de  facto,  but  such  deposition  is  void.  Biencourt  v.  Parker,  27  Tex.  558.  Where 
a  commission  issues  to  a  notary  public,  if  within  the  United  States  or  Canada,  it 
is  sufficient  to  name  the  county  of  his  residence ;  but  if  the  deposition  is  to  be 
taken  in  some  foreign  country,  the  city  or  town  of  his  residence  must  be  stated. 
Lyon  v.  Barrows,  13  Iowa,  428.  Notaries  cannot  take  depositions  to  be  used  in 
Courts  in  Tennessee.  Carter  v.  Ewing,  1  Tenn.  Ch.  212. 

4  Cook  v.  Bell,  18  Mich.  387. 

«  20  N.  Y.  134.  See  McCleary  v.  Edwards,  27  Barb.  239,  holding  that  it  cannot 
be  objected  to  a  deposition  that  the  return  to  the  commission  was  indorsed  upon 
the  interrogatories,  which,  with  the  deposition,  were  annexed  and  secured  to  the 
commission. 


§  75  DEPOSITIONS.  83 

on  the  commission,  and  it  is  not  sufficient  if  annexed  to  the 
deposition.1 

In  Savage  v.  Birckhead,2  in  Massachusetts,  it  was  held,  where 
depositions  taken  under  a  commission  were  returned,  together 
with  the  commission  and  interrogatories,  in  an  envelope,  under 
the  seal  of  the  commissioner,  but  were  not  attached  to  the  com- 
mission, and  the  commissioner's  certificate  of  caption  was  also 
upon  a  separate  paper  in  the  same  envelope,  that  they  should  be 
admitted  in  evidence. 

A  deposition  taken  out  of  the  State  by  two  commissioners, 
appointed  by  the  Court,  should  be  signed  and  sealed  by  both 
commissioners ;  the  envelope  should  also  be  signed  and  sealed 
by  both  commissioners.3  A  commission  issued  to  four  commis- 
sioners jointly,  to  take  the  depositions  of  witnesses  in  England, 
was  executed  and  returned  by  three  of  the  commissioners  only, 
two  of  whom,  however,  were  of  the  defendant's  nomination ; 
and  it  was  held  they  were  not  admissible  in  evidence.4  • 

1  Beatty  v.  Ambs,  11  Minn.  331.  8  Wain  v.  Freedland,  2  Miles,  Penn.  161. 

2  20  Pick.  167.  *  Guppy  v.  Brown,  4  Dall.  410. 


84  NEGOTIABLE   INSTRUMENTS. 


CHAPTER  VH. 

DUTIES  RELATIVE  TO  NEGOTIABLE  PAPER. 

§  76.  Importance  of  duties  in  this  respect. 

L      PRESENTMENT  FOB  ACCEPTANCE. 

§  77.  "What  should  be  presented  for  acceptance. 

§   78.  By  and  of  whom  presentment  made. 

§   79.  Place  of  presentment. 

§   80.  Mode  of  presentment. 

§   81.  Time  within  which  presentment  made. 

£   82.  Excuses  for  delay  in  presentment. 

§   83.  As  regards  the  time  of  day. 

§   84.  Delay  by  agent  more  strictly  regarded. 

§   85.  Acceptance,  how  given. 

§   86.  Statutory  provisions  regarding  mode. 

§   87.  Time  given  drawee  for  acceptance. 

§   88.  A  partial  or  conditional  acceptance. 

§   89.  Acceptance  supra  protest. 

n.     PRESENTMENT  FOR  PAYMENT. 

§   90.  By  whom  demand  of  payment  made. 

§   91.  Demand  by  notary  or  clerk. 

§  92.  To  whom  presentment  for  payment  made. 

§   93.  In  case  acceptor  or  maker  be  dead. 

§   94.  In  case  of  partners. 

§   95.  When  the  acceptor  or  maker  cannot  be  found. 

§   96.  Time  of  making  presentment  for  payment. 

§   97.  As  to  the  time  of  day  for  demand  of  payment. 

§   98.  Computation  of  time. 

§   99.  Rule  regarding  Sundays  and  holidays 

§  100.  Place  of  presentment  for  payment. 

§  101.  Mode  of  demanding  payment. 

§  102.  When  paper  payable  at  bank. 

§  103.  What  will  excuse  failure  to  demand  payment. 

in.    PROTEST. 

§  104.  Meaning  and  effect  of. 

§  105.  What  instruments  should  be  protested. 

§  106.  Foreign  promissory  notes. 

§  107.  By  whom  the  protest  should  be  made. 

§  108.  Place  of  protest. 

§  109.  Formal  preparation  of  protest. 

§  110.  Contents  and  particulars  of  protest. 

§  111.  Date  of  protest. 


§*76  NEGOTIABLE   INSTRUMENTS.  85 

§  112.  As  to  the  place  of  presentment. 

§  113.  A  presentment  and  demand  must  appear 

§  114.  Other  facts  appearing  by  the  certificate. 

§  115.  When  protest  unnecessary. 

IV.      NOTICE  OF  PROTEST. 

§  116.  Who  must  have  notice. 

§  117.  Manner  of  giving  notice. 

§  118.  Form  of  the  notice. 

§  110.  As  to  the  description  of  the  instrument. 

§  120.  The  fact  of  dishonor. 

§  121.  As  to  notice  of  demand  for  payment  from  party. 

§  122.  The  party  who  gives  notice. 

§  123.  Notice  by  an  agent. 

§  124.  The  proper  person  to  receive  notice. 

§  125.  Notice  when  the  parties  reside  in  the  same  place. 

§  126.  Who  may  be  regarded  as  living  in  the  same  place. 

§  127.  When  notice  is  personally  served. 

§  128.  Notice — parties  residing  in  different  places. 

§  129.  When  parties  reside  temporarily  in  a  place. 

§  130.  The  place  where  notice  should  be  sent. 

§  131.  Time  within  which  notice  given. 

§  132.  What  hour  next  day  is  reasonable. 

§  133.  When  holidays  intervene. 

§  134.  A  holder  has  a  day  to  give  notice  to  predecessor. 

§  135.  Liability  of  notary  in  reference  to  negotiable  paper. 

§  76.  Importance  of  duties  in  this  respect. — The  con- 
fidence placed  in  notaries  public  in  regard  to  their  duties  in 
making  presentment,  demand,  protest,  and  notice  of  protest  of 
negotiable  instruments,  renders  this  part  of  their  duty  very  im- 
portant.1 A  failure  to  duly  perform  these  duties  may  not  only 

1  QUALITIES  OP  NEGOTIABLE  PAPER. — 1.  It  must  be  open  and  unsealed.  If  a  seal  be 
impressed  and  a  recognition  of  the  seal  be  made  in  the  body  of  the  paper,  it  is  then 
a  special  contract,  in  the  nature  of  a  bond.  Conine  t.  Junction  etc.  E.  B.  Co. 
3  Houston,  28'J  ;  Edwards  on  Bills,  208.  In  some  States,  sealed  instruments  for 
the  payment  of  money  are  placed  by  statute  on  the  same  footing  as  bills  and 
notes  in  respect  to  their  negotiability.  These  States  hold  that  the  addition  of  a 
seal  to  a  bill  or  note,  payable  to  order  or  bearer,  does  not  impair  its  negotiability. 
The  places  in  which  this  is  the  rule  are  Colorado,  Dakota,  Florida,  Georgia,  Illi- 
nois, Kansas,  Massachusetts,  Nebraska,  North  Carolina,  Ohio,  Tennessee.  Dan- 
iel on  Xeg.  Instruments,  Sec.  33.  But,  in  general,  the  mere  affixing  a  scroll 
or  seal  to  the  name  of  the  drawer  or  maker,  will  not  affect  the  negotiable  char- 
acter of  the  instrument.  Anderson  v.  Bullock,  4  Munf.  442. 

2.  The  engagement  to  pay  must  be  absolute.  There  must  not  be  a  mere  request  of 
a  favor,  as  in  the  case  where  a  paper  read,  "  Mr.  L,  please  to  let  the  bearer  have 
£7,  and  plane  it  to  my  account,  and  you  will  much  oblige  your  humble  servant" : 
it  was  held  not  to  be  negotiable.  Little  v.  Stackford,  1  Mood.  &  M.  371.  And  a 
mere  acknowledgment  of  a  debt  due,  without  any  express  or  implied  promise  to 
paj  on  its  face,  is  not  negotiable,  as  is  held  in  England,  in  the  case  of  an  ac- 
knowledgment in  the  form  of  I  O  U.  Fisher  t'.  Leslie,  1  Esp.  425.  But  when 


86  NEGOTIABLE   INSTRUMENTS.  §  76 

result  in  serious  loss  to  those  employing  them,  but  may  subject 
the  notary  to  serious  liability.  Hence,  it  will  be  desirable  to 
point  out  clearly  the  duties  devolving  on  notaries  in  this  re- 
spect, and  the  proper  manner  of  performing  the  important 
functions  intrusted  to  them.  The  duties  of  a  notary  in  respect 
to  negotiable  paper  may  be  divided  into  three  divisions,  viz : 
1.  Presentment  for  acceptance  or  payment ;  2.  Making  protest ; 
and  3.  Giving  notice  of 'protest.  There  is  another  duty  placed 

accompanying  the  acknowledgment  there  is  an  obligation  to  pay  interest,  and 
to  pay  on  demand,  this  is  held  to  give  the  paper  a  negotiable  character.  Currier 
v.  Lockwood,  40  Conn.  348  ;  Sackett  v.  Spencer,  29  Barb.  180. 

3.  The  event  of  payment  must  be  certain,  or  the  time  must  be  fixed  in  some  man- 
ner.   Any  condition  fixed  upon  as  determining  the  fact  or  the  time  of  payment, 
takes  from  the  paper  the  quality  of  negotiability.    Thus,  an  engagement  to  pay 
"  as  soon  as  the  crop  can  be  sold,  or  the  money  raised  from  any  other  source," 
is  not  a  promissory  note.    Nunez  v.  Dautel,  19  "Wall.  592.    And  it  will  not  be 
payable,  if  payment  is  to  be  only  out  of  a  particular  fund.    Edwards  on  Bills, 
143.    But  if  the  event  upon  which  payment  depends  must  happen,  it  will  not 
deprive  the  note  of  negotiability,  as  where  it  depends  on  one's  death.    Goode  v. 
Colehan,  2  Stra.  1217  ;  Bristol  v.  Warner,  19  Conn.  7.    It  will  be  negotiable  if 
two  events  are  named,  one  being  certain  to  occur.   Stevens  v.  Blunt,  7  Mass.  240. 

4.  The  bill  or  note  must  be  payable  in  a  certain  amount  of  money.    It  will  not  be 
negotiable  if  payable  in  merchandise,  or  any  specific  articles.    Chitty  on  Bills, 
132  ;  Lawrence  v.  Dougherty,  5  Yerg.  453.   And  if  payable  in  notes,  bank-bills,  or 
currency,  it  will  be  merely  a  special  contract,  and  not  negotiable  paper.    Mc- 
Cormick  v.  Trotter,  10  S.  &  R.  94  ;  Irvine  v.  Lowry,  14  Peters,  293  ;  Omohundro 
v.  Crump,  18  Gratt.  703.    An  author  says  :  "Money  alone  is  legal  tender,  and 
only  the  note  which  represents  money  should  be  held  negotiable.    It  should  be 
expressed  simply  as  payable  in  dollars,  which  have  a  definite  signification,  fixed 
by  law."    Daniel  on  Neg.  Instruments,  Sec.  56.  In  New  York,  where  a  note  was 
given  for  a  certain  sum  "payable  in-Canada  currency,"  it  was  held  not  nego- 
tiable :  Thompson  v.  Sloan,  23  "Wend.  71 ;  but  in  Michigan,  it  was  held,  a  note 
payable  "  in  Canada  currency  4^  is  negotiable,  it  being  construed  to  mean  the 
lawful  money  in  Canada,  and  this  is  the  more  approved  doctrine.    The  amount 
must  be  fixed  or  ascertainable.   So,  if  it  be  to  pay  money,  "  and  all  fines  accord- 
ing to  rule,"  it  is  not  a  negotiable  note.    Ayrey  v.  Fearnsides,  4  M.  &  "W.  168. 
And  if  the  instrument  be  to  pay  money,  and  also  to  "deliver  up  horses  and  a 
wharf,"  it  is  not  negotiable.    Martin  v.  Chauntry,  2  Stra.  1271. 

5.  The  payment  must  be  made  to  a  definite  person,  cither  to  his  order  or  bearer. 
If  made  only  to  a  person,  without  the  words  "bearer"  or  "order,"  it  is  merely 
a  contract  with  that  person  alone,  which  would  then  be  merely  an  assignable 
chose  in  action.    Story  on  Bills,  Sees.  119,  199.    If  payable  "to  bearer  A,"  it  is 
the  same  as  if  simply  payable  to  A,  and  is,  therefore,  not  negotiable.    Warren 
v.  Scott,  32  Iowa,  22.    No  precise  form  of  words  is  necessary  to  impart  negotia- 
bility.   The  words  "order"  and  "bearer"  are  convenient  and  expressive,  but 
they  are  not  the  only  words  which  will  communicate  the  quality  of  negotiability ; 
but  some  equivalent  words  should  be  used.    Raymond  v.  Middleton,  29  Penn. 
St.  530.    If  the  name  of  the  payee  be  not  expressed,  yet  if  there  be  sufficient  to 
designate  him,  it  will  be  sufficient  on  the  maxim  Certum  est  quod  certum  reddi 
potest.    Adams  v.  King,  16  111.  169  ;  Moody  v.  Threlkeld,  13  Ga.  55  ;  Knight  v. 
Jones,  21  Mich.  161. 


§  77  NEGOTIABLE   INSTRUMENTS.  87 

upon  them,  though  not  in  all  States,  to  keep  a  record  of  their 
acts  in  respect  to  these  several  duties ;  but  this  has  already  been 
referred  to  in  a  former  chapter.1  We  shall  treat  these  duties 
in  this  chapter,  and  first  of  presentment. 


I.  PRESENTMENT  FOR  ACCEPTANCE. 

§  77.   What  should  be  presented  for  acceptance. — A 

bill  or  order  draAvn  by  one  person  upon  another,  which  is  paya- 
ble at  a  certain  number  of  days  after  sight  or  demand,  should 
be  presented  for  acceptance  to  the  drawee ;  and  this  must  be 
done  without  unreasonable  delay,  or  the  drawer  and  indorsers 
will  be  discharged.2 

Whether  a  bill  payable  at  sight  should  be  presented  for  ac- 
ceptance is  a  question  upon  which  there  has  been  a  difference  of 
opinion.  Because  of  this  difference  and  uncertainty  the  matter 
is  now  determined  by  statute  in  nearly  all  of  our  States.3  When- 
ever a  bill  payable  at  sight  is  allowed  grace,  then  it  is  necessary 
to  present  it  for  acceptance  in  order  to  fix  the  time  of  payment. 
It  has  been  the  opinion  in  England  that  days  of  grace  should  be 
allowed.4  Bills  payable  on  demand,  or  at  a  certain  number  of  days 
after  date,  or  after  a  certain  event,  it  is  agreed  are  not  entitled 

1  See  Chap,  in,  Sec.  27. 

2  Allen  v,  Suydam,  20  Wend.  321;  Aymar  v.  Beers,  7  Cow.  705;  Robinson  v. 
Ames,  20  Johns.  146;  Story  on  Bills,  Sec.  228. 

3  Perhaps  nothing  can  better  illustrate  the  uncertainty  of  our  commercial 
law  in  the  various  States,  than  our  statutory  rules  regarding  bills  payable  at 
sight.    From  a  careful  examination  of  our  statute  law,  it  appears  that  in  more 
than  one-third  of  our  States  sight  bills  have  no  grace  allowed.    These  States  are : 
California,  where  no  grace  is  allowed  (Civil  Code,  Sec.  3181);  Colorado  (Rev. 
Stat.  p.  88);  Connecticut  (Rev.  Stat.  of  1874,  p.  344);  Delaware  (Rev.  Code  of 
1873,  p.  355);  Georgia  (Code  of  1873,   Sec.  2784);  Illinois  (Rev.  Stat.  of  1874,  p. 
720);  Louisiana  (Rev.  Stat.  of  1870,  p.  70);  Missouri  (1  "Wagner,  217);  New  York 
(2  Rev.  Stat.  Cth  Ed.  p.  1163);  Ohio  (1  Swan.  &  C.  862);  Pennsylvania  (Bright- 
ley's  Purdon's  Dig.  p.  Ill);  Rhode  Island  (Rev.  Stat.  p.  270);  Tennessee  (2  Tay- 
lor, p.  19G5);  Vermont  (Rev.  Stat.  p.  508). 

^  Such  is  held  by  Chitty,  (13th  Am.  Ed.)  426;  Bayley  on  Bills,  151;  Byles  on 
Bills,  (Sharswood's  Ed.)  336;  Edwards  on  Bills,  523.  In  "Webb  v.  Fairmauer,  3 
M.  &  W.  Bolland,  B.,  said:  "In  the  case  of  a  bill  payable  at  sight,  it  has  been 
decided  over  and  over  again  that  the  holder  cannot  sue  upon  until  after  the  ex- 
piration of  the  third  day  after  sight."  The  same  was  the  view  expressed  in 
Coleman  t.  Sayer,  1  Barn.  303;  Dehers  v.  Harriott,  1  Show.  163.  In  Jansen  ». 
Thomas,  Lord  Manslield  said:  "I  believe  there  is  great  doubt  as  to  the  usage 
about  the  three  days'  grace."  It  was  denied  that  such  bills  are  entitled  to  grace 
in  Trask  v.  Martin,  1  E.  D.  Smith,  505. 


88  NEGOTIABLE   INSTRUMENTS.  §  78 

to  grace,  and  need  not  therefore  be  presented  for  acceptance.1 
However,  it  is  the  usual  and  safest  way  to  present  a  bill  payable 
a  certain  time  after  date,  in  order  to  obtain  the  greater  security 
of  the  drawee's  acceptance ;  and  if  acceptance  be  refused,  the 
bill  must  then  be  protested  in  the  same  manner  as  if  it  were 
payable  so  many  days  after  sight.2  The  necessity  of  a  present- 
ment for  acceptance  does  not  exist  when  the  words  "  acceptance 
waived  "  are  embodied-  in  a  bill.3 

§  78.  By  and  of  whom  presentment  should  be  made. 

— The  holder,  or  his  authorized  agent — as  a  notary  may  be — has 
a  right  to  present  the  bill  for  acceptance.  The  party  who  has 
possession  of  a  bill  is  presumed  to  have  the  right  to  demand 
acceptance  or  payment.4  When  the  bill  is  drawn  upon  persons 
who  are  not  partners,  it  must  be  presented  to  all ;  for  a  holder 
is  not  bound  to  receive  the  acceptance  of  one  or  a  portion.5 
When  a  bill  is  drawn  on  a  firm,  a  presentment  to  and  an  accept- 
ance by  one  partner  will  be  sufficient.6 

The  person  presenting  a  bill  must  be  careful  to  ascertain 
whether  application  be  made  to  the  right  party  or  his  au- 
thorized agent  for  acceptance.  Thus,  in  an  action  against  the 
drawee  on  a  failure  to  accept,  it  appeared  that  the  witness  had 
carried  the  bill  to  a  place  pointed  out  to  him  as  the  drawee's 
house,  and  there  offered  it  to  a  person  in  a  tan-yard,  who  re- 
fused acceptance ;  the  witness  did  not  know  the  drawee  person- 
ally, and  could  not  swear  that  it  was  he  to  whom  he  offered  the 
bill,  or  that  the  person,  represented  himself  to  be  the  drawee, 
and  it  was  held  that  the  evidence  of  presentment  to  the  drawee 
was  insufficient.7 

A  clerk  found  at  the  counting-room  of  the  drawee  is  a  proper 

iBank  of  "Washington  v.  Triplett,  1  Pet.  25;  Bacliellor  v.  Priest,  12  Pick.  399; 
Bank  of  Bennington  v.  Raymond,  12  Vt.  401;  Smith  v.  Roach,  7  B.  Mon.  17; 
Walker  «.  Stetson,  19  Ohio  St.  400. 

2  Story  on  Bills,  Sec.  228;  Glasgow  v.  Copeland,  8  Mo.  268;  U.  S.  v.  Barker,  4 
"Wash.  C.  C.  4G4;  Allan  v.  Mawson,  4  Camp.  115. 

3  Webb  v.  Mears,  9  Wright,  222;  English  v.  Wall,  12  Rob.  La.  132;  Liggett  v. 
Weed,  7  Kan.  276. 

4  Bank  of  Utica  v.  Smith,  18  Johns.  230;  Freeman  v.  Boyntonr  7  Mass.  483. 
6  Story  on  Bills,  Sec.  229,  note  9;  Harris  v.  Clark,  10  Ohio,  5. 

«  Story  on  Notes,  239;  Holtz  v.  Boppe,  37  N.  Y.  634. 
*  Cheek  v.  Roper,  5  Esp.  175. 


§  79  NEGOTIABLE   INSTRUMENTS.  89 

party  to  whom  to  present  a  bill ;  and  it  is  not  necessary  to  show 
that  such  clerk  was  the  duly  authorized  agent  of  the  drawee.1 

Good  authorities  hold  that,  in  case  of  the  drawee's  death,  a 
presentment  should  be  made  to  his  personal  representatives,  if 
they  are  accessible,  and  within  a  reasonable  distance.2  But 
against  this  view,  Edwards  on  Bills  says :  "  Upon  principle,  it 
is  not  easy  to  see  upon  what  ground  the  holder  is  bound  to  pre- 
sent a  bill  drawn  upon  the  deceased  to  his  executor  or  adminis- 
trator for  acceptance.  An  acceptance  fcy  the  representative, 
binding  himself  personally,  is  not  according  to  the  tenor  of  the 
bill ;  neither  is  an  acceptance  qualified  so  as  to  render  him  re- 
sponsible to  pay  out  of  the  assets  that  may  come  into  his 
hands." 3  This  argument  is  undoubtedly  sound,  and  it  would 
therefore  follow  that,  in  case  of  the  drawee's  death,  the  bill 
might  be  protested,  and  recourse  had  against  the  other  parties.4 
If  the  drawee  have  absconded,  it  should  be  presented  at  his  last 
domicile  or  place  of  business.5 

§  79.  The  place  where  the  presentment  should  be 
made  may  be  general  or  particular — particular,  when  a  place 
is  specified  on  the  bill.  It  was  a  question  once  much  debated 
whether,  when  a  bill  was  drawn  on  a  person  at  a  specified  place, 
the  holder  was  bound  to  present  it  there  only,  and  if  not  ac- 
cepted there,  to  have  it  protested.  Now,  it  seems  reasonable 
that  the  object  of  indicating  a  place  is  to  enable  the  holder 
more  conveniently  to  find  the  drawee,  and  that  if  he  be  not  there 
he  should  be  sought  for  elsewhere.  There  may  be  many  causes 
which  would  take  one  away  from  his  place  of  business  or  resi- 
dence, and  it  would  seem  a  hard  rule  which  would  excuse  an 
inquiry  for  him  anywhere  else.  It  was  once  decided,  in  the 
House  of  Lords,  that  a  demand  at  the  place  specified  must  be 
made,  and  nowhere  else ; 6  but  against  this  was  the  opinion  of 

1  Nelson  v.  Fotterall,  7  Leigh,  180;  Stainback  v.  Bank,  11  Gratt.  260. 

2  Chitty,  (13th  Am.  Ed.)  318;  Story  on  Bills,  236. 
8  P.  401. 

4  Daniel  on  Neg.  Insts.  Sec.  458. 

5  Groton  v.  Dalheim,  6  Greeiilf.  476;  Bayley  on  Bills,  218.    If  he  only  have  re- 
moved, the  holder  must  endeavor  to  find  out  to  what  place  he  has  removed,  and 
make  the  presentment  there.    Collins  v.  Butler,  Stra.  1087.    See  the  second  part 
of  the  chapter  on  "  Presentment  for  Payment." 

6  Pvowe  i'.  Young,  2  Bligh,  391. 


90  NEGOTIABLE   INSTRUMENTS.  §§  80-81 

eight  of  the  twelve  judges  to  whom  the  question  was  referred. 
The  controversy  was  ended  by  statute  adopting  the  view  held 
by  the  judges  contrary  to  the  House  of  Lords.1  The  same  view 
has  been  adopted  in  this  country.2  If  the  drawee  has  his  dwell- 
ing house  in  one  part  of  the  town  or  city,  and  his  place  of  busi- 
ness at  another,  it  may  be  made  at  either  place ;  and  if  the 
drawee  resides  in  one  town,  and  has  his  place  of  business  at  an- 
other, the  holder  may  present  the  bill  at  either."  3  It  has  been 
held  that  if  the  drawee  has  moved  out  of  the  State  of  his 
former  residence,  either  into  a  foreign  country  or  into  another 
State,  a  presentment  to  him  is  not  necessary.4 

§  80.  The  mode  of  presentment. — "  The  term  '  present- 
ment '  imports  not  a  mere  notice  of  the  existence  of  a  draft, 
which  the  party  has  in  his  possession,  but  the  exhibiting  of  it  to 
the  person  on  whom  it  is  drawn,  that  he  may  see  the  same,  and 
examine  his  accounts  or  correspondence,  and  judge  what  he  shall 
do ;  whether  he  shall  accept  the  draft  or  not." 5  But  even  a 
refusal,  without  actually  having  the  bill  produced,  will  be  good 
ground  of  protest.6  But  before  acceptance,  the  drawee  has  a 
right  to  ask  for  the  bill,  and  may  decline  accepting  it,  save  in 
the  usual  mode  of  writing  his  name  across  it ;  but  unless,  as  is 
usual,  a  statute  requires  the  acceptance  to  be  in  writing,  a  per- 
son can  give  a  parol  acceptance,  and  he  cannot  afterward  refuse 
to  be  held,  on  the  ground  that  he  did  not  see  the  bill.7 

§  81.  Time  -within  -which  presentment  made. — It  has 

been  stated  that  an  unreasonable  delay  to  present  a  bill  for  ac- 
ceptance will  cause  the  indorsers  and  drawer  to  be  discharged, 
for  the  reason  that  the  drawee  may  have  been  abundantly  able 
to  meet  the  bill  when  drawn,  or  soon  afterward,  and  by  reason 
of  the  laches  of  the  holder  the  drawer  and  indorsers  were  pre- 
vented from  being  active  to  secure  themselves.  But  the  great 

1 1  and  2  Geo.  IV,  Chap.  78. 

2 1  Parsons,  N.  &  B.  305-11;  Story  on  Bills,  Sees.  355-357;  Edwards  on  Bills, 
426,428. 

8  Story  on  Bills,  Sec.  236. 

4  Magruder  v,  Bank  of  Washington,  9  Wheat.  698. 
6  Fall  River  Bank  ».  Willard,  5  Mete.  216. 

6  Fisher  v.  Beckwith,  19  Vt.  31  ;  Cannichael  v.  Bank,  4  How  Miss.  667. 

7  Fall  River  Bank  v.  Willard,  5  Mete.  216. 


§  82  NEGOTIABLE   INSTRUMENTS.  91 

difficulty  will  be  to  ascertain  what  period  of  time  will  be  con- 
sidered unreasonable.  It  is  very  evident  no  precise  rule  "can  be 
made  to.  ascertain  it,  as  it  must  depend  upon  a  variety  of  cir- 
cumstances which  it  is  impossible  to  foresee  or  calculate.1 

On  the  whole,  it  is  agreed,  it  must  be  a  question  for  a  jury, 
in  consideration  of  all  the  circumstances,  whether  the  delay  was 
unreasonable  or  not.2  But  it  may,  when  the  facts  are  not  dis- 
puted, be  decided  as  a  question  of  law.3 

§  82.  Excuses  for  delay  in  presentment. — If  the  holder 
put  a  bill  into  circulation,  there  is  not  the  same  strictness  in  re- 
quiring a  presentment  for  acceptance.  Even  a  delay  of  a  year, 
under  these  circumstances,  was  held  not  to  be  unreasonable.4 
But  if  the  holder  retain  the  bill  in  his  possession,  and  thus 
keep  it  from  circulation,  he  makes  it  his  own,  and  will  have  no 
remedy  against  antecedent  parties,  from  or  through  whom  he 
derived  title.5  The  difficulty  of  a  communication  with  the 
drawee  may  be  a  proper  excuse  for  a  delay  in  presentment.  In 
one  case,  a  month's  delay  was  held  too  much,  when  the  distance 
between  the  residence  of  the  drawer  and  the  drawee  was  only 
eighteen  miles,  with  communication  three  times  a  week  between 
them.6  Where  a  bill  was  drawn  in  London  on  Lisbon  at  thirty 
days,  circulated  through  Paris  and  Genoa,  and  presented  after  a 
delay  of  three  months  and  ten  days,  it  was  held  there  was  no 
laches.7  Where  a  sight  draft  on  New  York  was  indorsed  to 
the  plaintiff  in  Wisconsin,  and  was  not  mailed  to  New  York  for 
presentment  until  a  period  of  fourteen  days,  it  was  held  prima 
facie  evidence  of  laches.8 

The  falling  or  rising  of  the  rate  of  exchange  may  be  consid- 
ered to  determine  whether  there  was  unreasonable  delay  in  pre- 
sentment. If  the  exchange  were  steady  or  rising,  it  is  consid- 
ered more  unreasonable  to  wait,  whereas  if  it  were  falling  it 
might  be  presumed  the  holder  would  wait  a  longer  time.9  Any 

1  "Wallace  v.  Agry,  4  Mason,  336. 

2  Fry  v.  Hill,  7  Taunt.  397  ;  Nichols  v.  Blackmore,  27  Tex.  586. 

SBigelow,  J.,  in  Prescott  Bank  v.  Caverly,  7  Gray,  217  ;  1  Parsons,  K  &B.  340. 

4Muilman  v.  D'Equino,  2  H.  Bl.  565. 

SByles,  (Shar.  Ed.)  302  ;  Gowan  v.  Jackson,  20  Johns.  176. 

eDumontu.  Pope,  7  Blackf.  367. 

7  Goupy  v.  Harden,  7  Taunt.  397. 

8  Walsh  v.  Dart,  23  Wis.  334. 

»  Hellish  v.  Bawdon,  9  Bing.  416. 


92  NEGOTIABLE   INSTRUMENTS.  §§  83-84 

reasonable  cause,  such  as  sickness,  inevitable  accident,  or  a 
state  of  war  or  other  uncontrollable-event,  will  excuse  delay  in 
presentment  for  acceptance.1 

§  83.  As  regards  the  time  of  day  when  presentment 
should  be  made,  it  is  held  that  it  is  proper  to  present  a  bill  at 
any  time  during  the  hours  of  business ;  and  the  hours  of  busi- 
ness will  depend,  in,  a  great  many  cases,  upon  the  character  of 
the  drawee's  occupation.  For  instance,  the  reasonable  hours 
for  a  bank  range  from  ten  until  three  or  four  in  the  afternoon, 
or  according  to  the  hours  when  it  is  open  for  business; 
while,  in  the  case  of  a  tradesman,  eight  o'clock  in  the  even- 
ing would  not  be  too  late  to  present  a  bill  for  acceptance.2  And, 
no  matter  what  the  hour  may  be,  if  the  drawee  or  his  agent 
give  a  proper  answer  —  either  an  acceptance  or  refusal — it 
will  be  sufficient.3  But  if  application  be  at  an  unseasonable 
hour,  and  that  reason  be  offered  for  refusing  acceptance,  such 
reason  is  valid.4  And  a  known  custom  or  usage,  in  a  town  or 
city  where  the  presentment  is  to  be  made,  will  govern  in  determ- 
ining the  proper  hour  for  presentation.5  . 

Thus  it  is  the  custom  in  some  cities,  as  for  instance  in  San 
Francisco,  for  many  large  business  houses  and  all  the  banks  to 
close  at  one  in  the  afternoon  on  Saturday,  and  this  local  custom 
must  govern  and  be  observed  as  regards  the  time  for  present- 
ment. 

§  84.  Delay  by  agent  more  strictly  regarded. — An  agent 
is  held  to  a  stricter  accountability  for  delay  in  the  presentment 
of  a  bill  for  acceptance.  The  leading  case  on  this  subject  may 

iAymar  v.  Beers,  7  Cow.  705  ;  U.  S.  v.  Barker,  1  Paine  C.  C.  156  ;  Hilton  v. 
Shepherd,  6  East,  16. 

The  codes  of  foreign  countries  specify  the  time  within  which  bills  drawn  pay- 
able after  sight  must  be  presented  for  acceptance.  The  French  Code  gives  six 
months,  one  year,  and  even  two  years,  according  to  distance.  The  same  pro- 
visions are  made  by  the  Italian,  Dutch,  Portuguese,  and  Spanish  Codes. 

By  the  Civil  Code  of  California,  Sec.  3134,  a  definite  rule  is  given.  It  is  there 
provided  :  "  The  apparent  maturity  of  a  bill  of  exchange  payable  at  sight  or  on 
demand  is  :  1.  If  it  bears  interest,  one  year  after  its  date  ;  or,  2.  If  it  does  not 
bear  interest,  ten  days  after  its  date,  in  addition  to  the  time  which  would  suffice, 
with  ordinary  diligence,  to  forward  it  for  acceptance." 

2  Chitty  on  Bills,  313;  Bailey  v.  Bailey,  2  Campb.  517.  0 

» Parker  v.  Gordon,  7  East,  385;  Id.  316. 

*  Story  on  Bills,  Sec.  236.  ^     tv^  * 

6  Story  on  Notes,  Sec.  135.  g* 

^^  **^ 


§  85  NEGOTIABLE   INSTRUMENTS.  93 

be  considered  to  be  Allen  v.  Suydam,1  where  it  was  held,  after 
thorough  argument  and  examination,  that  an  agent  who  received 
a  bill,  payable  after  date,  for  collection,  and  which  had  not  been 
accepted,  was  bound  to  present  it  without  unreasonable  delay, 
and  having  delayed  for  seventeen  days  to  do  so,  he  was  liable  to 
his  principal  for  all  damages  he  might  have  sustained  by  his 
delay.  This  case  is  not  approved  by  Professor  Parsons,  who 
argues  that  the  agent  ought  not  to  be  held  to  any  stricter  rule 
in  this  respect  than  his  principal.2  But  this  view,  as  held  in  the 
New  York  case,  is  generally  accepted.  In  Scotland,  an  agent 
was  held  liable  for  having  neglected  to  present  a  bill  for  accept- 
ance for  four  days,  when  the  drawee  refused  to  accept.3  In 
another  case,  a  bill,  payable  at  Glasgow  three  days  after  date, 
was  sent  to  agents  in  that  city  for  collection.  Before  the  day  of 
payment  the  drawer  failed,  and  the  Glasgow  bank  refused  to 
accept.  It  was  not  clear  whether  the  bank  would  have  accepted 
the  draft  if  it  had  been  immediately  presented,  for  the  bank 
had  no  funds  of  the  drawer,  and  the  practice  had  been  to  make 
provision  for  such  drafts  at  the  day  of  payment.  In  an  action 
against  the  agents,  the  Court  held  "  that,  as  agents,  they  were 
bound  to  present  the  bill  for  acceptance  immediately."  4 

§  85.  Acceptance,  how  given. — By  the  common  law,  an 
acceptance  might  be  made  by  parol.  It  is  the  act  of  signifying 
one's  assent,  which  may  be  done  by  word  or  by  writing ;  but 
since  it  is  so  difficult  to  prove  or  show  an  acceptance  when  it  is 
orally  given,  commercial  usage  all  over  the  world  now  requires 
an  acceptance  to  be  in  writing ;  and  this  is  also  required  by 
statute  in  England,  and  in  most  of  the  United  States. 

The  acceptance  is  usually  given  by  writing  the  word  "  ac- 
cepted "  across  the  face  of  the  bill,  and  adding  the  acceptor's 
signature.  In  a  case  where  the  drawee  wrote  his  name  alone, 
it  was  held  inadmissible  for  him  to  show  that  he  refused  to 
write  "  accepted,"  for  the  name  alone  imported  it.5  Sometimes 
the  acceptor,  as  a  matter  of  precaution,  repeats  in  figures  the 
amount  of  the  bill.  And  it  has  been  held  that  where  the  stat- 

120  Wend.  321. 

2 1  Parsons  N.  &  B.  346-7. 

8  Brooke,  Office  and  Practice  of  a  Notary,  p.  55. 

*  Bank  of  Scotland  v.  Hamilton,  1  Bell.  Com.  409. 

5  Kauffman  v.  Barrenger,  20  La.  An.  419.    So  in  Spear  v.  Pratt,  2  Hill,  582. 


94  NEGOTIABLE   INSTRUMENTS.  §  85 

ute  law  requires  that  acceptance  shall  be  in  writing  on  the  bill, 
and  signed  by  the  party  to  be  charged  thereby,  or  his  agent, 
such  a  requirement  is  satisfied  by  the  acceptor  writing  his  name 
across  the  face  of  the  bill.1  It  is  usual  for  the  acceptance  to  be 
written  across  the  bill,  but  it  may  be  written  in  any  other  place. 
Thus  a  writer  says :  "  The  position  of  the  drawee's  subscrip- 
tion seems  immaterial,  provided  it  be  there,  for  it  may  be  writ- 
ten above  as  well  as,  below  that  of  the  drawer ;  and  as  it  has 
been  held  that  an  indorsement  may  be  written  on  the  face  of 
the  bill,  an  acceptance  may,  as  is  sometimes  the  case,  be  in- 
dorsed." 2 

But  the  writing  must  be  on  the  bill.  Thus,  under  the  New 
York  statute,  it  has  been  held  that  where  A  drew  a  bill  on  B, 
in  New  York,  and  procured  it  to  be  discounted  at  a  bank,  and 
B  afterward  wrote  a  letter  to  A,  accepting  the  bill,  and  A  ex- 
hibited the  letter  to  the  officers  of  the  bank,  that  the  bank  could 
not  maintain  an  action  against  B,  on  his  acceptance,  under  the 
New  York  statute.3 

The  acceptance  must  be  by  the  person  to  whom  the  bill  is  ad- 
dressed, otherwise  it  is  a  nullity,  except  in  case  of  an  acceptance 
for  honor.4  Thus,  when  a  bill  was  addressed  by  John  Hart  to 
"  Mr.  John  Hart,"  payable  to  me  or  order,  and  there  was  writ- 
ten across  its  face,  "  Accepted,  H.  J.  Clarke,"  it  was  held  that 
Clarke  could  not  be  sued  as  an  acceptor,  Coleridge,  J.,  saying : 
"  Acceptance  can  only  be  made  by  the  party  addressed,  or  for 
his  honor.  Here,  the  last  is  not  pretended,  and  the  first  cannot 
be  presumed."  5 

When  an  acceptance  is  made  by  an  agent,  the  holder  has  a 
right  to  inquire  into  the  agent's  authority  for  this  purpose,  and 
may  refuse  to  take  the  acceptance  when  that  authority  is  not 
definite,  and  treat  the  bill  as  dishonored.6 

1  Bassett «.  Haines,  9  Cal.  261. 

2  Thomson  on  Bills,  220. 

» "Worcester  Bank  v.  "Wells,  8  Met.  107. 

*  Walker  v.  Bank,  9  N.  Y.  582. 

6  Davis  v.  Clarke,  6  Ad.  &.  El.  K  S.  16. 

6  Coore  v.  Callaway,  1  Esp.  115;  Byles,  113. 

"When  an  acceptance  is  made  by  an  agent,  it  should  be  in  the  name  of  his  prin- 
cipal. Bayley  on  Bills,  52.  An  acceptance  by  a  partner,  in  his  individual  name, 
of  a  draft  drawn  on  firm,  will  bind  firm,  Parnell  v.  Phillips,  55  Ga.  618. 


§§  86-87  NEGOTIABLE   INSTRUMENTS.  95 

§  86.  Statutory  provisions  regarding  mode  of  accept- 
ance.— By  the  common  law,  a  parol  acceptance  would  be  valid ; 
and  so  it  will  now  be,  except  in  those  States  where  it  is  other- 
wise provided.  In  a  late  decision  in  the  Supreme  Court  of  the 
United  States,1  it  is  held  that,  unless  forbidden  by  statute,  it  is  a 
rule  of  law,  generally,  that  a  promise  to  accept  an  existing  bill 
of  exchange  is  an  acceptance  thereof,  whether  the  promise  be 
in  writing  or  by  parol.  But  many  of  our  States  have  expressly 
provided  by  statute  that  an  acceptance  of  a  bill  or  draft  must  be 
in  writing.  Thus,  in  Alabama  the  acceptance  is  required  to  be 
in  writing  on  the  bill ;  but  a  written  promise  to  accept  is  good.2 
So  in  Arkansas ;  and  if  the  writing  be  on  any  other  paper  it 
will  not  bind  the  acceptor,  except  where  one  on  the  faith 
thereof  receives  the  bill.3  Such  is  substantially  the  law  of  Cali- 
fornia4 and  Kansas.5  In  Michigan,  the  statute  provides  that 
"  no  person  within  this  State  shall  be  charged  as  an  acceptor  on 
a  bill  of  exchange,  unless  his  acceptance  shall  be  in  wriling, 
signed  by  himself  or  his  lawful  agent."  f  There  is  a  similar  pro- 
vision in  the  statutes  of  Minnesota  and  Missouri.7  And  in  the 
latter  State  it  has  been  decided  that  the  drawee  of  a  bill  is  not 
liable  upon  his  verbal  acceptance,  or  promise  to  pay  the  bill.8 
The  acceptance  must  be  in  writing  in  New  York,  Nevada,  Ore- 
gon, and  Wisconsin.9 

§  87.  Time  given  to  drawee  for  acceptance. — The  com- 
mercial law  generally  pertnits  a  drawee  a  certain  period  of  time 
to  consider  before  giving  his  acceptance ;  for  it  is  assumed  the 
drawee  should  examine  the  state  of  his  accounts  before  giving 
an  acceptance.  Twenty-four  hours  is  the  usual  period  allowed 

1  Scudder  v.  Union  Nat.  Bank,  1  Otto,  406.    In  this  case  it  was  shown  that  in 
Illinois  a  parol  promise  to  accept  a  bill  of  exchange  was  valid,  there  being  no 
statute  in  that  State  requiring  the  acceptance  to  be  in  writing. 

2  Code,  Sees.  1840-1. 
3Gantt's  Dig.  Sec.  549. 

*  Civil  Code,  Sees.  3193,  3196. 

5  Gen  Stat.  p.  45. 

6 1  Comp.  Laws,  p.  516. 

U.Bissell,  p.  714;  1  Wagner,  p.  214. 

8  Rousch  v.  Duff,  35  Mo.  312. 

9  2  Rev.  Stat.  New  York,  6th  Ed.  1160;  Compiled  Laws  of  Nevada,  Sec.  14; 
Gen.  Laws,  Oregon,  p.  718;  1  Taylor's  Stat.  Wisconsin,  835. 


96  NEGOTIABLE   INSTRUMENTS.  §  88 

for  this  purpose.1  But  if  the  drawee  refuses  to  accept  within 
the  twenty-four  hours,  the  holder  has  a  right  to  protest  im- 
mediately.2 

This  is  now  regulated  by  statute,  to  a.  great  extent,  and  in  a 
note  will  be  found  the  statutory  provisions  on  this  subject.3 

§  88.  A  partial  or  conditional  acceptance. — A  holder 
may  at  his  discretion  accept  a  partial  or  a  conditional  accept- 
ance ;  but  in  such  a  case  he  is  bound  to  notify  the  previous 
parties.  He  is  not  bound  to  take  any  acceptance  different  from 
the  tenor  of  the  bill,  and  if  not  so  accepted,  he  has  the  right  to 
protest  it.4  But  it  is  seldom  a  holder  is  willing  to  take  an 
acceptance  of  this  character,  and  the  general  course  will  be  to 
protest  a  bill  if  not  accepted  exactly  as  to  the  tenor  in  which 
drawn. 

An  acceptance  which  is  conditional  is  one  such  as  to  pay 
"  when  in  funds,"  to  pay  "  when  goods  consigned  to  me  are 
sold,"  and  the  like.  In  case  of  a  suit  on  this  kind  of  accept- 

1  Ingram  v.  Foster,  2  Smith,  243;  Bellasis  u.  Hester,  1  Ld.  Raym.  281;  Connelly 
v.  McKean,  64  Penn.  St.  113;  Case  u.  Burt,  15  Mich.  82;  Overmans.  Bank,  3 
Vroom,  5(53. 

2  Chitty  on  Bills,  279. 

8  The  French  law  allows  the  drawee  twenty-four  hours  for  consideration 
(Code  of  Com.  Sec.  125).  The  German  law  authorizes  the  holder  to  ask  im- 
mediate acceptance  (German  Law,  18).  The  following  States  by  statute  allow  a 
drawee  twenty-four  hours  to  decide : 

ALABAMA. — (Rev.  Code,  Sec.  1844.)  If  kept  for  twenty-four  hours,  the  bill  is 
considered  accepted. 

ARKANSAS.— (Gantf  s  Dig.  Sec.  554.)    The  same  provision. 

CALIFORNIA. — If  the  drawee  requests  it,  the  bill  must  be  left  with  him  until 
the  same  hour  of  the  next  day,  to  which  time  he  may  postpone  his  acceptance 
or  refusal  (Civil  Code,  Sec.  3186). 

KANSAS. — (Rev.  Stat.  p.  115.)  Must  give  an  answer  to  the  demand  within 
twenty-four  hours,  otherwise  the  bill  is  deemed  accepted. 

MASSACHUSETTS.— (Act  of  April  4th,  1860.)  Any  person  upon  whom  a  bill  of 
exchange  or  draft  is  drawn,  which  requires  acceptance,  shall  have  until  two 
o'clock  in  the  afternoon  of  the  business  day  next  succeeding  the  first  presenta- 
tion thereof  in  which  to  decide  whether  or  not  he  will  accept  the  same :  pro- 
vided, however,  that  all  bills  of  exchange  or  drafts,  which  may  be  for  cause 
held  over  one  day,  shall  when  accepted  date  from  the  day  of  presentation. 

MISSOURI. — (1  Wagner,  215.)    Twenty-four  hours  allowed. 

NEW  YORK. — Every  person  upon  whom  a  bill  of  exchange  is  drawn,  and  to 
whom  the  same  is  delivered  for  acceptance,  who  shall  destroy  such  bill,  or 
refuse  within  twenty-four  hours  after  such  delivery,  or  within  such  other  period 
as  the  holder  may  allow,  to  return  the  bill  accepted  or  non-accepted  to  the 
holder,  shall  be  deemed  to  have  accepted  the  same.  2  Rev.  Stat.  6th  Ed.  1161. 

*  Chitty  on  Bills,  301 ;  Edwards  on  Bills,  430. 


§  89  NEGOTIABLE    INSTRUMENTS.  97 

ance,  the  burden  will  be  on  the  plaintiff  to  show  a  performance 
of  the  condition  before  he  can  recover  against  the  acceptor.1 

By  receiving  a  qualified  acceptance,  all  antecedent  parties  are 
discharged,  unless  the  holder  has  obtained  their  consent.2  So 
the  holder  may  take  a  partial  acceptance,  but  he  will  discharge 
the  drawer  and  indorsers  unless  he  protests  as  to  the  residue, 
for  the  acceptance  is  only  good  as  to  the  part  for  which  ac- 
cepted.3 

Whenever  an  acceptance  is  conditional,  the  conditions  must 
appear  on  the  face  of  the  paper  ;  otherwise,  parties  into  whose 
hands  the  paper  may  come,  without  notice,  will  not  be  bound 
by  the  conditions.4 

§  89.  Acceptance  supra  protest. — It  sometimes  happens 
that  a  party,  for  the  honor  of  some  one  whose  name  is  on  a  bill, 
comes  forward  and  gives  an  acceptance  supra  protest,  or  for 
honor.  But  first,  it  is  necessary  to  protest  the  bill  on  the  failure 
of  the  party  to  whom  addressed,  or  to  another  au  besoin  to  ac- 
cept.5 This  kind  of  acceptance  is  given  in  this  manner :  the 
acceptor  supra  protest  appears  before  a  notary  public,  witnesses 
and  declares  that  he  accepts  such  protested  bill  in  honor  of  the 
drawer  or  indorser,  and  will  pay  it  at  the  appointed  time.6  He 
then  subscribes  his  name  to  the  words,  "  Accepted,  supra  protest, 
for  the  honor  of  A  B." 

When  an  acceptance  of  this  character  is  made,  the  party 
making  it  should  at  once  notify  the  party  in  whose  favor  he  has 
made  the  acceptance.7 

The  drawee  may  be  an  acceptor  supra  protest,  and  may  re- 
fuse acceptance  on  account  of  the  party  requesting.  He  will 
then  accept  for  the  honor  of  some  indorser  on  the  bill.8  There 
may  be  several  acceptors  supra  protest  ;  one  may  accept  for  the 

!Nagle  v.  Homer,  8  Cal.  358;  Liggett  v.  Weed,  7  Kan.  273;  Gammon  v 
Schmoll,  5  Taunt.  344. 

2  Byles  on  Bills,  186;  Story  on  Bills,  Sec.  204. 

8Weggersloffet?.  Kerne,  IStra.  214;  Thomson  on  Bills,  226. 

4U.  S.  v.  Bank  of  Metropolis,  15  Pet.  377;  Story  on  Bills,  Sec.  240. 

6  Story  on  Bills,  Sec.  256  ;  Hoare  v.  Cazenove,  16  East,  391 ;  Williams  v.  Ger 
maine,  7  B.  &  C.  468. 

0  Daniel  on  Neg.  Instruments,  387  ;  Gazzam  v.  Armstrong,  3  Dana,  554. 

'•  Story  on  Bills,  Sec.  259. 

» Id. 

NOTARIES — 7. 


98  NEGOTIABLE    INSTRUMENTS.  §  90 

drawer,  another  for  one  or  more  of  the  indorsers.1  If  the  ac- 
ceptor omits  to  state  for  whose  honor  the  acceptance  is  made,  it 
will  be  construed  to  be  for  the  honor  of  the  drawer.2 

If  the  acceptance  be  for  the  honor  of  the  drawer,  the  ac- 
ceptor will  be  liable  to  all  the  indorsees,  as  well  as  to  the  holder ; 
if  in  honor  of  a  particular  indorser,  then  to  all  subsequent  in- 
dorsees.3 


H.    PRESENTMENT   FOR  PAYMENT. 

§  90.  By  whom  demand  of  payment  made. — What  was 
said  in  regard  to  presentment  for  acceptance,  in  the  first  part  of 
this  chapter,  is  equally  applicable  to  presentment  for  payment, 
and  without  going  over  the  same  ground,  we  shall  here  make 
reference  to  the  section  wherein  this  subject  was  treated.4  In 
case  of  the  death  of  the  holder  of  a  bill  or  note,  the  demand  of 
payment  should  be  made  by  his  personal  representatives.  And 
if  a  person  has  become  bankrupt,  and  his  property  is  in  the 
hands  of  an  assignee,  he  is  the  person  to  make  demand  for  pay- 
ment. 

The  possession  of  a  bill  or  note,  payable  to  bearer,  or  indorsed 
in  blank,  is  prima  facie  evidence  of  the  right  of  the  holder  to 
demand  payment ;  and  payment  to  such  person  will  be  a  valid 
payment,  unless  it  is  known  that  he  has  acquired  possession 
wrongfully.  When  an  instrument  is  specially  indorsed  for  col- 
lection to  an  agent,  it  is  fair  to  presume  the  party  presenting  it 
is  authorized  to  demand  payment.  Even  when  placed  in  the 
holder's  hands  as  agent,  and  not  indorsed  by  the  payee,  a  pay- 
ment to  the  holder  under  such  circumstances  would  be  valid, 
but  if  negotiated  it  must  be  indorsed.5  But,  supposing  the  in- 
strument be  not  indorsed  by  the  payee,  or  be  indorsed  by  him 
specially  to  another,  and  the  holder  to  have  possession  without  an 
indorsement  to  him,  has  the  maker  or  acceptor  a  right  to  make 
payment  to  the  person  presenting  the  bill  or  note,  if  he  has  no 
proof  of  the  agency  of  the  holder  ?  and  will  a  payment  under 
these  circumstances  be  a  valid  payment?  Chitty  seems  to  in- 

i  Chitty  on  Bills,  376.  s  Cliitty  on  Bills,  352. 

2 1  Parsons  N.  &  B.  313.  <  See  Sec.  77. 

6  Doubleday  v.  Kress,  GO  Barb.  19G. 


§  91  NEGOTIABLE    INSTRUMENTS.  99 

timate  that  such  a  payment  would  be  valid ; 1  and  in  a  very 
early  case  it  is  said  :  "  If  a  wrong  person  do  show  the ,  bill,  by 
the  custom  of  merchants  this  is  a  good  payment."2  But  it 
is  now  settled  that  payment  under  these  circumstances  is  not 
valid.3 

§  91.  Demand  by  notary  or  clerk. — Before  a  protest  can 
be  made  for  non-payment,  a  notary  must  demand  payment  of 
the  bill  or  note.  But  the  question  very  frequently  arises 
whether  a  protest  founded  on  a  demand  made  by  a  notary's 
clerk  or  deputy  is  good.  By  the  English  practice,  the  clerks  of 
notaries  demand  payment,  and  protest  can  be  founded  on  such 
demand.4  But,  even  there,  the  right  of  a  notary's  clerk  to  make 
presentment  has  been  very  much  questioned.5  But  in  the 
United  States  it  is  generally  held  that,  at  common  law,  the 
notary  himself  must  make  the  demand  of  a  foreign  bill.  In 
some  States,  there  is  a  usage  permitting  a  demand  to  be  made  by 
a  clerk,  and  that  will  there  prevail,  while  in  others,  as  in  Louisi- 
ana, a  notary's  deputy  is  authorized  by  statute  to  make  a  de- 
mand.6 

In  New  York,  it  has  been  lately  held,  in  two  well-considered 
cases,  that  it  is  improper  to  found  a  protest  on  a  demand  made 
by  a  notary's  clerk,  unless  there  is  a  well-understood  usage 
authorizing  it.7 

iChitty  on  Bills,  365. 
2  Anon.  Styles,  366. 

8  Thompson  on  Bills,  246;  Daniel  on  Keg.  Instruments,  427  ;  Doubleday  v. 
Kress,  50  N.  Y.  410. 

4  Rodgers  v.  Stevens,  2  T.  R.  713;  Orr  v.  Maginnis,  7  East,  358;  Gale  v.  "Walsh, 

5  T.  R.  239.  Brooke  says:  "If  a  foreign  bill  should  not  be  paid  at  maturity,  then, 
by  the  law  merchant,  it  is  necessary  to  have  it  protested  by  a  notary  for  non- 
payment; and  it  is  presented  either  by  a  notary  or  by  his  clerk,  (most  commonly 
by  his  clerk)  and  it  is  then  noted,  and  a  protest  is  prepared,  signed  by  the  notary 
and  passed  under  his  official  seal."    Office  and  Duty  of  a  Notary,  p.  128. 

5  In  Leftly  v.  Mills,  4  T.  R.  170,  Buller,  J.,  in  a  dictum,  doubted  the  right  of  a 
notary's  clerk  to  make  a  proper  demand;  and  in  Vandewall  v.  Tyrrell,  1  Mood. 

6  M.  87,  (22  E.  C.  L.)  Buller's  dictum  was  approved;  and  followed  in  New  York, 
in  Onondaga  Co.  Bank  v.  Bates,  3  Hill,  57. 

6  Fassin  v.  Hubbard,  55  N.  Y.  465;  Carter  v.  Brown,  7  Humph.  548. 

'  Commercial  Bank  r.  Varnum,  49  N.  Y.  275;  Gawtry  v.  Doane,  51  N.  Y.  85; 
So  in  Missouri :  Commercial  Bank  v.  Barksdale,  36  Mo.  563.  In  Alabama :  Done- 
gan  v.  Wood,  49  Ala.  242.  In  Kentucky:  Chenowith  v.  Chamberlain.  6  B.  Mon. 
CO.  In  Mississippi :  Ellis  v.  Com.  Bank,  7  How.  294. 


100  NEGOTIABLE   INSTRUMENTS.  §  92 

In  Ocean  National  Bank  -y.  Williams,1  it  is  held  that  a  usage 
for  notaries  to  present  by  deputy  a  foreign  bill  of  exchange  for 
payment,  is  not  proved  by  evidence  of  the  general  practice  in 
case  of  "bills,"  unless  it  distinctly  appears  that  the  practice 
includes  foreign  bills.  In  case  of  inland  bills  and  promissory 
notes,  the  law  merchant  does  not  require  them  to  be  protested ; 
but  by  statute,  in  almost  all  our  States,  this  may  be  done,  and 
whenever  protested  they  must,  as  in  the  case  of  foreign  bills, 
be  demanded  by  the  notary  in  person  before  he  can  make  a 
proper  protest.2  A  son  of  the  holder  of  paper,  if  he  be  a  notary, 
may  act  as  the  agent  of  his  father  in  his  notarial  as  well  as  in 
any  other  lawful  capacity.3 

§  92.  To  whom  presentment  for  payment  should  be 
made. — In  the  usual  course,  a  demand  for  payment  is  made  on 
the  drawee  or  acceptor  of  a  bill,  or  the  maker  of  a  note,  or 
an  authorized  agent  of  either,  and  this  demand  may  be  made  at 
the  usual  abode  or  place  of  business  of  the  person,  not  neces- 
sarily from  himself,  but  it  may  be  from  any  one  found  there — 
his  wife,  clerk,  agent,  or  servant.4 

There  is  more  indulgence  given  to  a  drawee  in  waiting  for  his 
acceptance  than  to  a  person  from  whom  payment  can  be  de- 
manded. In  the  first  instance,  a  drawee  may  not  be  aware  of 
the  existence  of  the  bill,  and  a  holder  therefore  is  bound  to  wait 
a  reasonable  time,  and  use  reasonable  diligence  in  finding  him ; 
but  in  the  case  of  one  who  has  accepted,  and  made  thereby  a 
positive  engagement  tojpay,  no  such  indulgence  is  called  for  or 
granted.  He  is  expected  to  be  fully  aware  of  the  nature  and 
period  of  his  obligation,  and  to  provide  funds  at  the  time  and 
place  agreed  upon ;  and  whenever  an  application  is  made  by  a 
holder  at  the  proper  time  and  at  the  designated  place,  he  should 
expect  the  engagement  to  be  promptly  met,  or  otherwise  he  may 
at  once  protest.6 

1 102  Mass.  141. 

2  Sheldon  v.  Benham,  4  Hill,  129. 

«  Eason  v.  Isbell,  42  Ala.  456. 

4  Matthews  v.  Haydon,  2  Esp.  509;  Stainback  v.  Bank  of  Virginia,  11  Gratt. 
260;  Kelson  v.  Fotterall,  7  Leigh,  180;  Draper  v.  demons,  4  Mo.  52;  Stewart  v. 
Eden,  2  Caincs,  121. 

5  See,  on  this  point,  Story  on  Bills,  Sec.  350;   Daniel  on  Negotiable  Instru- 
ments, Sec.  440. 


§§  93-95  NEGOTIABLE   INSTRUMENTS.  101 

§  93.  In  case  the  acceptor  or  maker  be  dead,  it  will  be 
necessary  to  present  for  payment  to  the  representative's  of  the 
deceased.1  But  if  the  bill  or  note  be  payable  at  a  particular 
place  it  is  sufficient  to  present  it  there,  and  if  not  paid  it  may 
be  protested.2 

§  94.  In  case  of  partners,  a  demand  from  one  is  sufficient, 
and  if  payable  generally,  a  demand  from  one  of  the  partners, 
wherever  found,  is  sufficient.3 

If  the  firm  be  dissolved  from  any  cause,  either  through  a  volun- 
tary dissolution  or  in  case  of  bankruptcy,  a  demand  from  any 
one  of  the  partners  is  sufficient,  for  the  liability  continues  until 
all  demands  are  duly  satisfied  or  discharged.4 

In  the  event  of  the  death  of  a  partner,  a  demand  should  be 
made  from  the  surviving  partner  or  partners,  and  not  from  the 
personal  representatives  of  the  deceased,  because  all  liabilities 
of  the  firm  fall  on  the  surviving  partners  in  the  first  instance.5 

If,  however,  the  note  were  made  by  joint  makers,  who  are  not 
partners,  a  demand  must  be  made  on  each,  according  to  what 
was  stated  in  a  former  section  on  presentment  for  acceptance.6 

In  the  event  of  the  death  of  a  joint  maker,  presentment  should 
be  made  to  the  survivor,  upon  whom,  according  to  law,  the  ob- 
ligation devolves.  If  the  note  were  several  as  well  as  joint, 
the  demand  may  be  made,  as  the  holder  shall  choose,  upon  the 
survivor,  or  upon  the  representatives  of  the  deceased.7 

§  95.  When  the  acceptor  or  maker  cannot  be  found, 

and  is  supposed  to  have  absconded,  application  should  be  made 
at  his  last  place  of  residence,  and  inquiries  made  for  him.     If 

1  Govrer  v.  Moore,  25  Me.  16;  Magruderu.  Bank,  3  Pet.  87;  Juniata  Bank  v. 
Hale,  10  Serg.  &  E.  167.    If  there  be  no  personal  representatives,  and  the  note  or 
bill  be  payable  generally,  then  it  must  be  presented  at  the  last  dwelling-house 
of  the  deceased.    Story  on  Notes,  Sec.  253. 

2  Philpot  v.  Bryant,  1  Moore  &  P.  754;  3  C.  &  P.  244;  Holtz  v.  Boppe,  37  N.  Y. 
G34;  Boyd's  Admr.  v.  Bank,  15  Gratt.  502. 

3  Branch  of  State  Bank  v.  McLeran,  26  Iowa,  306;  Shed  v.  Brett,  1  Pick.  401. 
4Crowley  v.  Barry,  4  Gill,  194;  Fourth  Nat.  Bank  v.  Heuschuk,  52  Mo.  207; 

Hubbard  v.  Matthews,  54  N   Y.  50;  Brown  v.  Turner,  15  Ala.  632. 

5  Cayuga  Bank  v.  Hunt,  2  Hill,  035 ;  Story  on  Bills,  Sees.  346-362. 

«  Gates  v.  Beecher,  60  N.  Y.  522;  Willis  v.  Green,  5  Hill,  232;  Union  Bank  v. 
Willis,  8  Met.  504;  Arnold  v.  Dresser,  8  Allen,  435 

f  Story  on  Notes,  Sec.  256, 


102  NEGOTIABLE    INSTRUMENTS.  §  96 

the  instrument  be  payable  at  a  certain  place,  it  is  only  necessary 
to  go  there,  and  if  closed,  or  no  one  there  to  answer,  nothing 
more  may  be  done,  but  protest.1  If  a  notary,  on  presenting  a 
bill  or  note  for  payment,  find  the  place  of  business  or  residence 
of  the  acceptor  or  maker  closed,  and  no  person  there  to  give 
an  answer,  it  is  customary  and  proper  to  state  the  fact  in  the 
protest ;  and  sometimes,  in  case  of  the  bankruptcy  or  insolvency 
of  a  party,  that  fact  may  also  be  properly  stated,  though  a 
notary's  certificate  would  not  be  evidence  as  to  such  facts  ;  but 
it  may  tend  to  account  for  non-payment.2 

§  96.  Time  of  making  presentment  for  payment. — In 

ordinary  cases,  the  time  is  fixed  by  the  note  or  bill,  and  where 
grace  is  allowed,  as  it  is  in  almost  all  our  States,  it  is  easy  to 
determine  the  time. 

The  uncertainty  arises  when  a  bill  or  note  is  payable  at  sight 
or  demand.  It  was  shown,  in  a  former  section,  that  on  bills  pay- 
able on  demand  no  grace  is  allowed ;  and  on  those  payable  at 
sight,  grace  is  not  allowed  in  more  than  one-third  of  our  States.3 
But  when  a  note  or  bill  bears  interest,  and  is  payable  on  de- 
mand, it  is  evident  that  there  must  be  some  reasonable  time  with- 
in which  it  should  be  presented  for  payment ;  and  what  this  rea- 
sonable time  may  be,  cannot  be  determined  according  to  any  uni- 
form rule.  The  authorities  disagree  very  seriously  as  to  this 
reasonable  time.  Eight  months'  delay  was  held  to  discharge  an 
indorser  in  one  instance,  seven  months  in  another,  five  and  a 
half  in  another,  all  the  .parties  residing  in  the  same  place;4 
and,  on  the  other  hand,  a  delay  of  twenty-one  months  to  present 
a  note  payable  on  demand,  with  interest,  has  been  held  not  to 
discharge  the  indorser.6  The  cases,  however,  hold  that  what 
this  reasonable  time  shall  be,  in  a  given  instance,  must  be  a 
question  of  fact  for  a  jury  to  determine,  under  proper  instruc- 
tions from  the  Court.6  But  it  is  also  held  on  good  authority 

1  Buxton  v.  Jones,  1  Mann.  &  G.  86;  Barclay  v.  Bayley,  2  Campb.  527. 
2 See,  on  this  point,  Sec,  140  in  chapter  on  "  Notarial  Acts  as  Evidence." 

3  See  Sec,  77. 

4  Field  v .  Nickerson,  13 Mass.  131 ;  Martin  v.  Winslow,  2  Mason,  241 ;  Sice  v.  Cun- 
ningham, 1  Cow.  397.    Two  years  was  held  too  long.  Loomis  v.  Pulver,  9  Johns. 
244. 

5  Vreeland  v.  Hyde,  2  Hall,  429.    See  Daniel  on  Neg.  Instruments,  Sec.  609. 
6Hankey  v.  Trotman,  1  \V,  Bl.  1;  Field  v.  Nickerson.  13  Mass.  131;  Straker  v. 

Graham.  4  M.  &  W.  721. 


§  97  NEGOTIABLE   INSTRUMENTS.  103 

that,  when  the  admitted  facts  are  few  and  simple,  it  is  a  question 
of  law  for  the  Court.1  Some  of  our  States  have,  by  statute, 
determined  the  time  when  such  notes  should  be  presented  for 
payment.2 

§  97.  As  to  the  time  of  day  for  demand  of  payment. — 

When  the  note  or  bill  is  payable  at  a  bank,  or  at  a  place  of  busi- 
ness having  known  and  established  hours  for  the  transaction  of 
business,  it  should  be  presented  for  payment  during  such  hours.3 
But  if  application  be  made  after  business  hours,  and  any  one 
be  found  on  the  premises,  having  authority  to  answer,  who  re- 
fuses payment,  a  protest  can  be  made  on  such  refusal.4  A  late 
case  in  New  York  is  remarkable  in  this  respect.  On  the  day 
when  the  note  was  due,  the  holder  got  into  the  bank  after  busi- 
ness hours,  (5  P.  M.)  and  found  an  officer,  who  answered  that  there 
was  no  money  then  to  pay  the  note ;  but  it  appeared  that  during 
the  day  the  indorser  had  been  to  the  bank  inquiring  for  the  note, 

1  Himmelman  v.  Hotaling,  40  Cal.  Ill;  Gray  v.  Bell,  2  Rich,  67;  Dennett  v. 
"Wyman,  13  Yt.  485;  Darbishire  t1.  Parker,  6  East,  3.     In  this  connection,  the 
opinion  of  Byles  is  "well  worth  attention.    He  says  :  "  A  common  promissory 
note  payable  on  demand  differs  from  a  bill  payable  on  demand,  or  a  check,  in 
this  respect :  the  bill  and  check  are  evidently  intended  to  be  presented  and 
paid  immediately,  and  the  drawer  may  have  good  reasons  for  desiring  to  with- 
draw his  funds  from  the  control  of  the  drawee  without  delay  ;  but  a  common 
promissory  note,  payable  on  demand,  is  very  often  originally  intended  as  a 
continuing  security,  and  afterward  indorsed  as  such.    Indeed,  it  is  not  uncom- 
mon for  the  payee,  and  afterward  the  indorsee,  to  receive  from  the  maker  inter- 
est periodically  for  many  years  on  such  a  note,  and  sometimes  the  note  is  ex- 
pressly made  payable  with  interest,  that  though  the  holder  may  demand  pay- 
ment immediately,  yet  he  is  not  bound  to  do  so.    It  is  therefore  conceived  that 
a  common  promissory  note  payable  on  demand,  especially  if  made  payable 
with  interest,  is  not  necessarily  to  be  presented  the  next  day  after  it  has  been 
received,  in  order  to  charge  the  indorser;  and  when  the  indorser  defends  him- 
self on  the  ground  of  delay  in  presenting  the  note,  it  will  be  a  question  for  the 
jury  whether,  under  all  the  circumstances,  the  delay  of  presentment  was  or  was 
not  unreasonable."    Bills,  (Sharswood's  Ed.)  338. 

2  Thus,  in  California  :  "If  a  promissory  note,  payable  on  demand,  or  at  sight, 
without  interest,  is  not  duly  presented  for  payment  within  six  months  from  its 
date,  the  indorsers  thereof  are  exonerated,  unless  such  presentment  is  ex- 
cused."   Civil  Code,  Sec.  3248.    In  Connecticut,  (Gen.  Stat.  1875,  p.  343)  a  note 
payable  on  demand  must  be  presented  within  four  months,  or  it  shall  be  con 
sidered  overdue  and  dishonored. 

a  Parker  v.  Gordon,  7  East,  385  ;  Thomson  on  Bills,  302  ;  Story  on  Bills,  Sees 
230,  349. 

4  Bank  of  Syracuse  v.  Hollister,  17  N.  Y.  46  ;  Bank  of  TJtica  t-.  Smith,  18  Johns 
230  ;  First  Nat.  Bank  v.  Owen,  23  Iowa,  185 ;  Flint  v.  Rodgers,  15  Me.  67  ;  Gar 
nett  i:  Woodcock,  1  Starkie,  475  ;  6  M.  &  Sel.  44. 


104  NEGOTIABLE   INSTRUMENTS.  §  97 

and  ready  to  pay  it.  It  was  held  that  due  demand  had  been 
made.1 

When  the  person  who  is  bound  to  pay  has  not  obliged  him- 
self to  pay  at  any  bank  6r  business  place,  having  regular  and 
established  hours  of  business,  a  demand  may  be  made  of  him 
at  his  residence,  or  wherever  found,  at  any  reasonable  hour  of 
the  day.  It  would,  however,  be  improper  to  present  it  after  he 
has  retired  in  the  evening.  Thus,  in  Wilkins  v.  Jadis,2  the  evi- 
dence was  that,  between  seven  and  eight  o'clock  in  the  evening, 
a  notary's  clerk  went  to  the  house,  rang  the  bell,  and  knocked, 
but  no  answer  was  given,  and  it  was  held  that  this  was  a  good 
presentment.  Lord  Tenterden  (a  good  authority  on  commercial 
law)  said  in  this  case  :  "  As  to  bankers,  it  .is  established,  with 
reference  to  a  well-known  rule  of  trade,  that  a  presentment  out 
of  the  hours  of  business  is  not  sufficient ;  but  in  other  cases  the 
rule  of  law  is,  that  the  bill  must  be  presented  at  a  reasonable 
hour ;  a  presentment  at  twelve  o'clock  at  night,  when  a  person 
has  retired  to  rest,  would  be  unreasonable,  but  I  cannot  say  that 
a  presentment  between  seven  and  eight  in  the  evening  is  not  a 
presentment  at  a  reasonable  time."  3 

In  Farnsworth  v.  Allen,4  a  presentment  was  made  at  9  P.  M., 
at  the  maker's  residence,  ten  miles  from  Boston.  He  and  his 
family  had  retired,  and  it  was  sufficient.  In  another  case,  a  pre- 
sentment at  8  A.  M.,  at  the  maker's  storehouse,  was  held  insuffi- 
cient.5 A  presentment  at  8  P.  M.,  in  some  cases,  has  been  held 
sufficient.6 

It  is  a  general  rule  of-Jaw  that  when  a  person  enters  into  a 

contract  he  has  all  the  day  to  perform  it  on  which  he  obliged 

himself  to  pay  or  discharge  it.     Then  it  may  be  asked,  why 

cannot  an  acceptor  or  maker  have  the  whole  day  within  which 

\ 

1  Salt  Springs  Nat.  Bank  of  Syracuse  v.  Burton,  58  N.  Y.  430. 

2  2  Barn.  &  Ad.  188. 

8  In  Strong  v.  King,  35  111.  9,  it  was  held  that,  after  a  bill  has  been  presented 
by  the  holder  or  his  agent  for  payment,  it  may  again  be  presented  by  a  notary 
for  the  purpose  of  making  a  protest  for  non-payment,  after  business  hours  on 
the  same  day.  "Where  a  notary  agrees  to  present  a  bill  a  second  time,  a  protest 
without  such  second  presentation  is  unauthorized.  Case  v.  Burt,  15  Mich.  82 

*  4  Gray ,453. 

5  Lunt  v.  Adams,  17  Me.  230. 

6Trigg3  v.  Neunham,  1  Car.  &  P.  631 ;  Barclay  v.  Bailey,  2  Camp.  427.  A  pre- 
sentation a  few  minutes  before  twelve  at  night  would  be  unavailing.  Dana  v 
Sawyer,  22  Me.  244. 


§  98  NEGOTIABLE   INSTRUMENTS.  105 

to  make  payment?  There  cannot  be  any  doubt  that  a  tender 
up  to  the  last  minute  of  the  day  ought  to  be  good,  so  as-to  save 
the  party  from  any  damages  by  protest.  Lord  Kenyon,  in 
Leftley  v.  Mills,1  thought  that  the  acceptor  had  until  the  last 
moment  of  the  last  day  of  grace  to  pay  the  bill.  So  did  Parke, 
J.,  in  Startup  v.  McDonald.2  And  in  Hartley's  Case,8  Abbott, 
C.  J.,  said :  "  I  think  the  notice  of  dishonor  given  on  the  day 
on  which  the  bill  is  payable  will  be  good  or  bad  as  the  acceptor 
may  or  may  not  afterward  pay  the  bill.  If  he  does  not  after- 
ward pay  it,  the  notice  is  good ;  and  if  he  does,  it,  of  course, 
comes  to  nothing." 

§  98.  Computation  of  time. — In  construing  contracts  and 
statutes  under  the  common  law,  a  month  is  deemed  a  lunar 
month ; 4  but  in  the  law  merchant  a  month  is  construed  as  a  cal- 
endar month  whenever  it  has  reference  to  negotiable  instruments 
or  mercantile  contracts.5  Thus,  on  a  bill  or  note  payable  one 
month  after  date,  and  dated  the  1st  of  January,  the  month  will 
not  expire  until  the  first  of  February,  and  the  bill  or  note  will 
not  become  due  (allowing  three  days  of  grace)  until  the  fourth ; 
and,  according  to  this  rule,  if  a  bill  be  dated  on  the  29th,  30th, 
or  31st  of  January,  payable  one  month  after  date,  the  time  will 
expire  on  the  last  day  of  February,  whether  it  be  leap  year  or 
not,  and  the  days  of  grace  are  to  be  calculated  from  thence,6 
which  would  make  it  due  on  the  3d  of  March. 

A  bill  made  on  the  last  day  of  a  month  is  payable  on  the 
corresponding  day  of  the  next  month,  if  a  month  after  date, 
and  not  on  the  last  day  of  the  succeeding  month.  Thus,  a  note 
made  on  the  30th  of  September,  the  last  day  of  the  month,  is 
due,  if  without  grace,  on  the  30th  of  October,  and  not  on  the 
last  day  of  October. 

When  a  bill  is  payable  at  a  certain  number  of  days  after 
sight,  and  is  accepted,  the  days  are  calculated  from  and  exclu- 
sive of  the  day  of  acceptance.  And  if  it  be  presented  on  one 

*  4  T.  R.  170. 

26  M.  &  G.  602. 
s  1  C.  &  P.  556. 
4  Chitty  on  Bills,  373. 

5Bayley  on  Bills,  249;  Thomas  v.  Shoemaker,  6  Watts  &  S.  179;  McMurchey  v 
Robinson,  10  Ohio,  496;  Lang  v.  Gale,  1  M.  &  S.  111. 
6 1  Parsons  N.  &  B.  409;  Wagner  v,  Kenner.  2  Rob.  La.  120 


106  NEGOTIABLE   INSTRUMENTS.  §§  99-100 

day  and  accepted  on  another,  the  day  of  acceptance  is  excluded.1 
The  expressions  payable  "  in  thirty  days,"  "  in  thirty  days  from 
date,"  "  at  thirty  days,"  and  "  thirty  days  after  date,"  are  syn- 
onymous.2 

§  99.  Rule  regarding  Sundays  and  holidays. — In  esti- 
mating the  maturity  of  notes  and  bills  there  is  a  peculiarity 
about  the  calculation  of  grace  arising  from  the  fact  that  grace 
is  a  mere  indulgence.  Thus,  when  a  bill  or  note,  without  grace, 
falls  due  on  a  Sunday  or  holiday,  it  is  not  payable  until  the  fol- 
lowing business  day.3  But  when  the  time  expires,  including 
the  days  of  grace,  on  a  Sunday  or  other  non-business  day,  the 
bill  or  note  falls  due  on  the  day  preceding,  because,  as  grace  is 
an  indulgence,  the  debtor  cannot  require  the  creditor  to  extend 
his  indulgence  beyond  three  calendar  days.  The  latest  business 
day  within  or  before  the  period  of  grace  is  the  day  of  payment, 
even  though  all  grace  be  excluded.4  If  a  holiday  or  Sunday 
intervenes,  or  is  the  nominal  day  of  grace,  it  is  counted  as  one 
of  the  days  of  grace.5 

§  100.  The  place  of  presentment  for  payment. — Pro- 
vided there  be  no  specified  place  on  the  instrument  where  pay- 
ment is  to  be  made,  a  demand  for  payment  should  be  made  upon 
the  maker  or  acceptor  at  his  domicile,  place  of  business,  or  wher- 
ever found.6  But  when  an  instrument  is  payable  at  a  certain 
place,  presentment  there  only  is  necessary,  and  if  not  paid,  or 
no  one  be  found  to  answer,  protest  may  be  made,  without  fur- 

1  Mitchell  v.  De  Grand,  1  Mason,  176. 

In  computing  time  from  the  day  of  the  date  or  from  a  certain  act  or  event,  the 
day  of  the  date  is  to  be  excluded  unless  a  different  intent  is  manifested  by  the 
instrument  or  statute  under  which  the  question  arises.  Bemis  v.  Leonard.  118 
Mass.  502. 

2  Ammidown  v.  Woodman,  31  Me.  580. 

«  Avery  v.  Stewart,  2  Conn.  G9;  Satler  v.  Burt,  20  Wend.  205;  Barrett  v.  Allen, 
10  Ohio,  426. 

*  Story  on  Bills,  Sec.  338;  1  Parsons  N.  &  B.  402.  By  Sec.  3132,  Civil  Code  of 
California,  it  is  provided,  when  a  note  or  bill  becomes  due  on  a  holiday,  it  is  pay- 
able on  the  next  business  day;  but  in  this  State  there  are  no  days  of  grace  al- 
lowed. 

6  Woolley  v.  Clements,  11  Ala.  229. 

6  A  demand  by  the  holder  of  a  note,  payable  generally,  may  be  made  upon 
the  maker  in  the  street,  he  having  no  place  of  business  and  raising  no  objection 
to  the  place  where  the  demand  is  made.  King  v.  Crowell,  Gl  Me.  244. 


§  100  NEGOTIABLE    INSTRUMENTS.  107 

ther  inquiry.1  But  when  no  place  is  designated,  a  party  is  re- 
quired to  use  diligence  in  looking  up  the  maker  or  acceptor  ; 
and  if  he  has  removed  from  his  last  place  of  residence  or  busi- 
ness, inquiries  should  be  made  as  to  his  new  residence.  The 
presumption  is,  that  the  place  where  a  demand  for  payment 
should  be  made  is  the  place  where  the  maker  lived  when  the 
note  was  made ;  however,  if  he  remove  from  the  State  and  take 
up  a  permanent  residence  elsewhere,  it  is  sufficient  to  present 
the  note  for  payment  at  the  maker's  last  place.2  Notwithstand- 
ing this  presumption,  evidence  is  admissible  to  show  a  parol 
agreement  to  pay  at  another  place,  at  the  time  the  note  was 
made.3 

When  the  maker  or  acceptor  has  a  well-known  place  of  busi- 
ness, it  is  the  proper  place  to  make  a  demand  of  payment.  It 
would  be  very  unreasonable  to  have  a  bill  presented  at  a  per- 
son's private  residence  under  these  circumstances,  and  to  do  so 
would  show  a  want  of  diligence  that  would  not  justify  a  pro- 
test.4 But  if  a  person's  place  of  business  cannot  be  found,  then 
a  demand  should  be  made  at  his  residence.5 

A  presentment,  when  the  party  has  no  place  of  business, 
should  be  made  at  his  dwelling.6  And  so,  if  a  partnership  place 
of  business  is  closed  when  the  note  matures,  and  one  of  the 
partners  reside  in  the  town  or  city,  a  demand  at  his  residence 
should  be  made.7 

A  note  drawn,  payable  "  at  any  bank  in  Boston,"  should  be 
presented  for  payment  at  an  incorporated  bank.8  A  promissory 
note  made  payable  at  a  bank  in  a  city  may  be  presented  at  any 
incorporated  bank  there ;  it  is  the  duty  of  the  party  bound  to 
pay  to  have  funds  ready  at  any  bank  in  such  a  case.9 

1  By  Sec.  3100  of  the  Civil  Code  of  California,  it  is  provided  that  "  if  the  instru- 
ment is,  by  its  terms,  payable  at  a  specified  place,  and  he  is  able  and  willing  to 
pay  it  there  at  maturity,  such  ability  and  willingness  are  equivalent  to  an  offer 
of  payment  upon  his  part." 

2  Herrick  v.  Baldwin,  17  Minn.  209. 

s  1  Parsons,  K  &  B.  424;  Meyer  v.  Hibsher,  47  N.  Y,  265;  State  Bank  v.  Hurd, 
12  Mass.  171;  Thompson  v.  Ketcham,  4  Johns.  285. 

4  1  Parsons,  N.  &  B. 

5  Jarvis  v.  Garnett,  39  Mo.  271. 

6  Packard  v.  Lyon,  5  Duer,  82. 

"  Granite  Bank  v.  Ayres,  16  Pick.  392. 

8  Way  v.  Butterworth,  108  Mass.  509. 

9  Maiden  Bank  v.  Baldwin,  13  Gray,  154. 


108  NEGOTIABLE   INSTRUMENTS.  §§  101-2 

§  101.  Mode  of  demanding  payment. — It  is  necessary, 
when  a  demand  is  made,  to  make  an  actual  exhibition  of  the  in- 
strument.1 So,  where  a  demand  was  made,  and  the  party  did 
not  produce  the  bill,  or  had  it  not  with  him,  it  was  insufficient.2 
But  when  a  demand  is  made,  and  no  actual  exhibition  of  the 
paper  is  required,  and  a  refusal  be  given  based  on  other  grounds, 
the  exhibition  of  the  paper  will  be  considered  waived.3  And 
when  the  maker,  at  t}ie  day  of  maturity,  calls  upon  the  holder 
and  informs  him  of  his  inability  to  pay,  requesting  him  at  the 
same  time  to  notify  the  indorsers,  an  exhibition  would  be  use- 
less.4 It  was  held,  in  an  early  New  Hampshire  case,  that  where 
the  note  was  in  a  bank  a  short  distance  from  the  maker's  house, 
and  the  cashier  informed  the  maker  that  it  was  there,  and  re- 
quested payment,  it  was  a  sufficient  demand.5 

§  102.   When  the  paper  is  payable  at  a  bank,  and  is 

there  ready  to  be  taken  up  by  the  party  who  is  bound  to  pay,  if 
it  is  not  paid  during  business  hours,  it  may  be  considered  as 

1  Musson  v.  Lake,  4  How.  262. 

2  Draper  v.  Clemens,  7  Mo.  52;  Freeman  v.  Boynton.  7  Mass.  483;  Shawn.  Reed, 
12  Pick.  132;  Nailor  v.  Bowie,  3  Md.  251. 

'  »  Lockwood  v.  Crawford,  18  Conn.  361;  Fall  River  Union  Bank  v.  Willard,  5 
Met.  216;  King  v.  Crowell,  61  Me.  244. 

By  the  Civil  Code  of  California,  there  are  specific  rules  given  as  to  how  pre- 
sentment for  payment  should  be  made.  By  Sec.  3131  it  is  provided:  "Pre- 
sentment of  a  negotiable  instrument  for  payment,  when  necessary,  must  be 
made  as  follows,  as  nearly  as,  by  reasonable  diligence,  it  is  practicable :  1. 
The  instrument  must  be  presented  by  the  holder.  2.  The  instrument  must 
be  presented  to  the  principal  debtor,  if  he  can  be  found  at  the  place  where  pre- 
sentment should  be  made ;  and  if  not,  then  it  must  be  presented  to  some  other 
person  having  charge  thereof,  or  employed  therein,  if  no  one  can  be  found  there. 
3.  An  instrument  which  specifies  a  place  for  its  payment  must^  be  presented 
there ;  and  if  the  place  specified  includes  more  than  one  house,  then  at  the  place 
of  residence  or  business  of  the  principal  debtor,  if  it  can  be  found  therein.  4. 
An  instrument  which  does  not  specify  a  place  for  its  payment  must  be  pre- 
sented at  the  place  of  residence  or  business  of  the  principal  debtor,  or  wherever 
he  may  be  found,  at  the  option  of  the  presenter.  5.  The  instrument  must  be 
presented  upon  the  day  of  its  maturity;  or,  if  it  be  payable  on  demand,  it  may 
•  be  presented  upon  any  day.  It  must  be  presented  within  reasonable  hours ;  and, 
if  it  be  payable  at  a  banking-house,  within  the  usual  banking  hours  of  the 
vicinity;  but  by  consent  of  the  person  to  whom  it  should  be  presented,  it  may 
be  presented  at  any  hour  of  the  day.  6.  If  the  principal  debtor  have  no  place 
of  business,  or  if  his  place  of  business  or  residence  cannot,  with  reasonable  dili- 
gence, be  ascertained,  presentment  for  payment  is  excused." 

*  Gilbert  v.  Demis,  3  Met.  495.    , 

6  Tredick  v.  Wendell,  1 N.  H.  80. 


§  102  NEGOTIABLE   INSTRUMENTS.  109 

dishonored,  and  notice  should  at  once  be  given.1  Sometimes,  as 
a  formal  matter,  a  presentation  is  made,  but  it  is  well-  .settled 
that  the  mere  presence  of  the  paper  at  the  bank  in  which  pay- 
able is  sufficient.2  When  the  bank  owns  the  paper  at  the  time 
of  maturity,  its  presence  in  the  bank  awaiting  payment  is  pre- 
sumed, and  the  burden  is  on  the  defendant -to  show  the  contrary.3 

Sometimes  the  accounts  of  the  promisor  are  examined,  to  see 
if  there  are  funds  to  meet  the  paper  payable  at  the  bank,  but 
this  is  unnecessary,  any  competent  evidence  being  available  to 
show  that  there  were  no  funds  there  to  meet  it,  and  that  no  one 
offered  payment.4  Suppose  there  were  funds  in  the  bank 
belonging  to  the  promisor,  and  the  bank  owned  the  paper, 
would  it  be  right  to  protest  when  no  order  was  given  to  appro- 
priate the  funds  to  the  payment  of  the  paper  ?  It  is  contended 
that  without  a  direction  the  bank  is  not  bound  to  make  an 
appropriation  of  the  owner's  balance  for  this  purpose ;  but 
Parsons  holds  it  would  be  a  good  defense  if  the  party  had 
sufficient  funds  in  the  bank  at  the  time;5  and  this  would  no 
doubt  be  held  as  reasonable  everywhere. 

There  is  a  usage  in  some  places,  where  negotiable  paper  is 
left  with  a  bank,  for  the  bank  to  notify  a  party,  some  time 
before  the  paper  matures,  when  it  should  be  paid ;  and  if  not 
paid  at  the  time,  it  may  be  considered  dishonored.6  In  Maine, 
the  custom  is  sanctioned  by  judicial  decisions,  but  it  is  dis- 
approved in  Xew  Hampshire  and  in  Maryland,  with  an  intima- 
tion that  it  ought  not  to  be  sanctioned.7 

But  whenever  a  usage  prevails  in  a  place,  a  maker  or  drawer 
or  acceptor  is  supposed  to  have  had  such  usage  in  view,  and 
this  will  be  the  presumption  of  the  law  unless  a  contrary  mode 
be  expressed.8 

1  Folger  v.  Chase,  18  Pick.  63;  Woodin  v.  Foster,  16  Barb.  146;  "Ward  v.  North- 
ern Bank,  14  B.  Mon.  351;  Fullerton  v.  Bank  of  U.  S.  1  Pet.  604;  Chicopee  Bank 
r.  Philadelphia  Bank,  8  Wall.  641;  Keynolds  v.  Chettle,  2  Camp.  596;  Saunder- 
son  r.  Judge,  2  H.  Bl.  509. 

-  Merchants'  Bank  v.  Elderkin,  25  N.  Y.  178. 

3  State  Bank  r.  Napier,  6  Humph.  270;  Berkshire  Bank  r.  Jonesr6Mass.  524; 
Bank  of  U.  S.  r.  Carmeal,  2  Pet.  543. 

4  Daniel  on  Neg.  Instruments,  Sec.  657. 
«N.  &B.437. 

6  Jones  v.  Fales,  4  Mass.  245;  Whitwell  v.  Johnson,  17  Mass.  449. 

7  Daniel  on  Neg.  Instruments,  Sec.  658. 
» Mills  r.  Bank  of  U.  S.  11  Wheat.  431 


110  NEGOTIABLE   INSTRUMENTS.  §§  103-4 

§  103.   What  will  excuse  a  failure  to  demand  payment. 

— The  same  causes  which  will  excuse  a  presentment  for  accept- 
ance will  also  excuse  a  presentment  for  payment,  as  where,  by 
reason  of  insuperable  obstacles,  it  is  rendered  impossible.  The 
circumstances  of  a  general  nature  which  excuse  the  holder 
when  there  has  been  a  failure  on  his  part  to  make  due  present- 
ment of  the  bill  or  note  to  the  drawee,  acceptor,  or  maker,  or  to 
convey  due  notice  of  dishonor  to  the  drawer  or  indorser,  may 
be  :  1.  The  breaking  out  of  a  war  between  the  country  of  the 
holder  and  that  of  the  party  to  whom  presentment  should  be 
made.  During  the  continuance  of  hostilities  presentment  is 
excused  when  intercourse  is  suspended,  but  when  the  hindering 
cause  is  removed  a  presentment  must  be  made.1  2.  Public  and 
positive  prohibitions  of  commercial  intercourse  between  the 
countries  of  the  holder  and  that  of  party  to  whom  presentment 
should  be  made.2  3.  The  occupation  of  the  country  where  the 
parties  live,  or  where  the  bill  or  note  is  payable,  by  a  public 
enemy  obstructing  or  suspending  commercial  intercourse.3  4. 
Political  disturbances  interrupting  or  obstructing  the  ordinary 
channels  of  trade  or  communication.4  5.  The  prevalence  of  a 
malignant  epidemic  disease  which  suspends  the  ordinary  opera- 
tions of  business.6  6.  Overwhelming  calamity  or  unavoidable 
accident  which  obstructs  the  usual  channels  of  communication.6 


in.   PROTEST. 

§  104.  Meaning  -and  effect  of. — A  protest  is  a  solemn 
official  process,  required  by  the  law  merchant  to  properly  authen- 
ticate the  fact  of  the  dishonor  of  negotiable  paper.  It  is  a 
declaration,  through  the  medium  of  a  notary,  on  the  part  of  the 
holder,  against  any  loss  to  be  sustained  by  him  in  consequence 
of  the  non-acceptance  or  non-payment,  as  the  case  may  be,  of 
a  negotiable  instrument.  The  word  "  protest  "  signifies  to  bear 

1  House  v.  Adams,  48  Perm.  St.  2G1:  Dunbar  v.  Tyler,  44  Miss.  1;  Norrist-.Des- 
pard,  28  Md.  491 ;  James  v.  Wade,  21  La.  An.  548;  Harden  v.  Boyce,  59  Barb.  427. 

2  Story  on  Bills,  Sees.  257,  263. 
« Id.  Sec.  261. 

<Id. 

6  Tunno  v.  Lague,  2  Johns.  Gas.  1. 

«Cliitty  on  Bills,  451:  Edwards  on  Bills,  492:  Windham  Bank  v.  Norton,  22 
Conn.  213. 


§  105  NEGOTIABLE   INSTRUMENTS.  Ill 

witness  before,  or  to  publish  forth,  because  the  notorial  act  evi- 
dences to  all  the  world  the  fact  of  dishonor ;  and  the  notary's 
certificate  is  the  formal  evidence,  without  further  attestation  of 
the  fact  by  witnesses,  though  formerly  witnesses  to  a  protest 
were  not  uncommon.1 

In  a  more  popular  sense,  protest  includes  all  the  steps  neces- 
sary to  fix  the  liability  of  a  drawer  or  indorser  upon  the  dis- 
honor of  commercial  paper  to  which  he  is  a  party.2 

§  105.   What  instruments  should  be  protested. — By  the 

law  merchant,  when  a  foreign  bill  of  exchange  is  not  accepted, 
or  not  paid  at  maturity,  it  must  be  protested ;  and  no  other  evi- 
dence of  the  dishonor,  except  this  protest  by  a  notary,  is  admis- 
sible.3 It  is  well  settled  that  in  this  respect  our  States  are 
considered  as  foreign  to  one  another,  so  that  a  bill  drawn  in  one, 
payable  in  another  State,  is  a  foreign  bill.4 

By  statute  in  almost  all  our  States,  a  protest  of  a  promissory 
note  or  inland  bill  of  exchange  may  be  made  by  a  notary,  and 
the  notarial  protest  is  accorded  the  same  force  as  evidence  as  in 
the  case  of  a  protest  of  a  foreign  bill.  It  is  to  be  observed, 
however,  that  the  instrument  need  not  be  protested  by  a  notary 
in  order  to  charge  an  indorser  in  the  case  of  a  promissory  note 
or  inland  bill ;  for  the  holder  may  waive  the  privilege,  if  he 
choose  to  do  so,  and  produce  other  evidence  of  dishonor.5 

The  object  of  requiring  a  protest  in  the  case  of  a  foreign 
bill  was  to  obviate  the  necessity  of  calling  witnesses  from  a 
distance  to  prove  the  fact  of  dishonor.  The  notarial  protest 
under  seal  is  received  as  the  fullest  and  most  satisfactory  proof 
of  this  fact,  and  foreign  Courts  everywhere  accept  the  protest 
under  seal  as  the  highest  evidence  of  the  dishonor  of  a  bill.6 

It  is  only  such  bills  as  are  negotiable  which  require  a  protest 
by  the  custom  of  merchants  ;  hence,  bills  payable  in  any  other 

1  Brooke,  Office  and  Practice  of  a  Notary,  p.  75. 

2  Townsend  v .  Lorrain  Bank,  2  Ohio  St.  345;  Coddington  v.  Davis,  1  Comst.  180. 
8  Young  v.  Bryan,  G  Wheat.  146 ;  Bank  of  U.  S.  r.  Leathers,  10  B.  Hon.  64;  Smith 

v.  Curlee,  59  111.  221;  Union  Bank  v.  Hyde,  G  Wheat.  372. 

*  Dickens  v.  Beale,  10  Pet.  572;  Bank  U.  S.  v.  Daniels,  12  Pet.  32;  Phcenix 
Bank  v.  Hissey,  12  Pick.  483. 

fi  Bailey  u.  Dozier,  6  How.  23;  Wanger  v.  Tupper,  8  How.  U.  S.  234. 

6  Byles  on  Bills.  249 


112  NEGOTIABLE    INSTRUMENTS.  §  106 

medium  or  currency  than  that  of  the  lawful  money  of  a  country 
are  not  negotiable,  and  need  not  be  protested.1 

§  106.  Foreign  promissory  notes,  or  notes  made  in  one 
State  to  be  paid  in  another,  may  be  indorsed,  and  then  they  be- 
come similar  to  a  foreign  bill  of  exchange  and  should,  it  is 
believed,  be  protested,  in  case  of  dishonor,  by  a  notary.  Brooke 
says :  "  It  is,  perhaps,  not  of  very  frequent  occurrence  for  a 
promissory  note  to  be'  made  abroad,  but  payable  in  this  country ; 
in  such  a  case,  however,  the  same  ceremony  as  to  presentment 
when  due,  and  protest  for  non-payment,  must  be  observed  as  in 
the  case  of  a  foreign  bill."  2 

A  writer  whom  we  have  had  occasion  to  follow  with  much 
confidence,  says  : 3  "  Therefore,  when  an  indorsed  note  is  paya- 
ble in  a  State  or  country  different  from  the  one  where  it  is 
drawn — perhaps  more  especially  when  the  indorser  is  not  of  the 
State  or  country  where  it  is  payable,  though  no  distinguishing 
difference  it  seems  to  us  exists — almost  every  consideration  of 
convenience  which  would  make  a  protest  necessary  and  com- 
petent evidence  of  presentment  and  notice  in  case  of  a  foreign 
bill,  would  recognize  it  as  equally  competent  in  respect  to  the 
indorser  of  the  note.  It  has  been  well  said  that  '  the  similarity 
between  the  indorsement  of  notes  and  the  drawing  and  indorse- 
ment of  bills  of  exchange  is  so  great,  that  there  can  be  no 
sound  reason  given  for  establishing  or  preserving  a  distinction 
between  them,  and  requiring  a  different  character  of  evidence 
to  prove  the  same  facts  with  regard  to  two  instruments,  which, 
though  different  in  some  respects  as  to  their  phraseology,  are  so 
essentially  similar  in  their  nature  and  operations.' 4  And  there 
are  well-considered  cases  sustaining  it.5  This  view  has  been 
taken  in  Kentucky  respecting  an  indorsed  certificate  of  de- 
posit." 6 

1  Bank  of  Mobile  v.  Brown,  42  Ala.  108;  Ford  v.  Mitchell,  15  Wis.  304.     As  to 
what  constitutes  negotiable  paper,  see  note  to  Sec.  7G. 

2  Office  and  Practice  of  a  Notary,  p.  130. 
8  Daniel  on  Neg.  Instruments,  Sec.  928. 

*  Parker,  C.  J. ;  Williams  v.  Putnam,  14  N.  H.  540,  Edwards  on  Bills,  6-T. 
«  Ticonic  Bank  v.  Stackpole,  41  Me.  302. 
.  Clary,  17  B.  Mon.  645. 


5$  107-8  NEGOTIABLE    INSTRUMENTS.  113 

0  0 

§  107.  By  whom  the  protest  should  be  made. — A  notary 
public,  as  a  general  rule,  is  the  proper  person  to  make  .protest. 
The  notary  being  a  public  officer,  commissioned  by  the  State, 
havino-  .an  official  seal,  his  official  acts  have  full  faith  and  credit 

O  7 

in  foreign  countries  as  well  as  in  his  own.  In  case  no  notary 
can  be  found,  the  protest  may  be  made  by  any  respectable  pri- 
vate person  of  the  place  where  the  bill  is  dishonored.1  In  En- 
gland, it  is  required  by  statute  that,  in  case  of  inland  bills,  the 
protest  by  a  private  person  shall  be  made  in  the  presence  of  two 
or  more  credible  witnesses.2  In  some  of  our  States,  provision  is 
made  for  protest  in  case  of  the  death,  inability,  or  absence  of  a 
notary.3  The  Civil  Code  of  California  provides:  "Protest 
must  be  made  by  a  notary  public,  if  with  reasonable  diligence 
one  can  be  obtained ;  and  if  not,  then  by  any  reputable  person 
in  the  presence  of  two  witnesses."  4 

§  108.  The  place  of  protest  is  usually  where  the  dishonor 
occurs.  Thus,  in  case  of  non-acceptance,  the  protest  should  be 
made  in  the  place  where  the  bill  is  presented.  When  a  bill  is 
to  be  presented  at  one  place  and  payable  at  another,  in  case  of 
non-acceptance,  it  is  held  it  may  be  protested  at  either  place  ; 5 
but  the  better  and  more  convenient  rule  would  be  to  protest  the 
bill  at  the  place  where  acceptance  is  refused.  By  statute,  in 
England,  understood  to  be  declaratory  of  the  common  law,  it  is 
declared  that  a  protest  at  the  place  of  payment,  in  case  of  a 
refusal  to  accept,  without  further  presentment  to  the  drawee,  is 
sufficient.6  Where  the  drawee  accepts  in  one  place  to  pay  in 
another,  the  latter  will  be  obviously  the  proper  place  to  make 
protest  in  case  of  dishonor.7 

The  manner  of  making  protest  should  conform  to  the  law  of 
the  place  where  the  protest  is  made.8 

1  Burke  v.  McKay.  2  How.  U.  S.  CO. 

2  9  and  10  William  III,  Chap.  17. 

3  See  Sec.  19. 

4  Sec.  3226.    This  rule  is  quite  general.    See  Chitty  on  Bills,  333;  Reed  v.  Bank 
of  Ky.  1  T.  B.  Mon.  91;  Herkimer  Co.  Bank  v.  Cox,  21  "Wend.  119;  Bank  v.  Por- 
ter, 2  "Watts,  141 ;  French  Code  of  Commerce,  Art.  173. 

6  Chitty  on  Bills,  334.    By  the  Civil  Code  of  California,  Sec.  3228,  a  protest  for 
non-a*ceptance  must  be  made  at  the  place  of  presentment  for  acceptance. 
62  and  3  William  IV,  Chap.  98. 
1  Story  on  Bills,  Sec.  284. 
8  Turner  v.  Rogers,  8  Ind.  139;  Carter  v.  Union  Bank,  7  Humph.  548. 

NOTARIES — 8. 


114  NEGOTIABLE    INSTRUMENTS.  §  109 

§  109.  Formal  preparation  of  protest. — Before  a  protest 
for  dishonor  can  be*  made,  the  notary  himself,  unless  by  statute, 
or  a  well-established  custom,  a  deputy  is  authorized,  must  make 
a  presentment  for  acceptance  or  payment.  Then,  in  case  of  re- 
fusal, it  is  his  duty  to  "  note  "  the  fact  at  the  time,  on  the  very  day 
of  dishonor.1  This  "  noting,"  as  it  is  termed,  has  become  a  very 
important  step  in  the  protest ;  and  is  by  some  termed  "  an  initial 
protest."  2  It  was  said,  in  an  English  case,  that  "  noting  is  un- 
known to  the  law,  as  distinguished  from  protest,  and  has  grown 
into  practice  within  these  few  years."  8 

Unless  this  "  noting  "  be  made  on  the  very  day  of  dishonor, 
the  protest  cannot  be  received  as  evidence  of  the  fact  of  dis- 
honor ;  for  the  notary  will  not  be  permitted  to  trust  to  his 
memory  for  the  necessary  particulars.4  The  "  noting  "  may  be 
either  upon  the  instrument  protested,  or  in  the  notary's  register. 
It  is  a  mere  memorandum  of  the  fact  of  presentment,  of  refusal 
of  acceptance  or  payment,  the  name  of  the  party  to  whom,  and 
the  place  where  presented,  with  the  time  and  date,  and  signed 
by  the  initials  of  the  notary.  When  this  is  done,  the  full  and 
complete  protest  may  be  made  out  at  any  time  afterward, 
which  act  is  known  as  "  extending  the  protest."  5  In  a  case  in 
Scotland,  the  extension  of  a  protest  was  permitted  fifteen  years 
after  noting.6 

A  copy  of  the  protest  need  not  be  sent  to  the  drawer  or  in- 
dorser;  it  is  well  settled  that  notice  of  the  fact  of  protest  is  all 
either  of  these  is  entitled  to,  with  a  description  of  the  instru- 
ment protested,  so  they  shall  know  with  certainty  what  it  is, 
and  the  parties  to  it.7 

1  Thomson  on  Bills,  315. 

2  Chaters  v.  Bell,  4  Esp.  48;  Story  on  Bills,  Sec.  27. 
SLeftly  v.  Mills,  4  T.  R.  170. 

4  Thomson  on  Bills,  312. 

^Geralopulov.  Wieler,  10  C.  B.  COO;  Bobbins  v.  Gibson,  1  M.  &  S.  288;  Bailey 
f.  Dozier,  6  How.  U.  S.  23;  Bank  of-Decatur  v.  Hodges,  9  Ala.  031;  Cayuga 
Bank  v.  Hunt,  2  Hill,  035.  In  California,  the  protest  must  be  made  on  the  clay 
of  presentment,  or  on  the  next  business  day,  but  it  may  be  written  out  at  any 
time  thereafter.  Civil  Code,  Sec.  3229. 

^Thomson  on  Bills,  312. 

7  Goodman  v.  Harvey,  4  Ad.  &  El.  870;  Cromwell  v.  Hynson,  2  Esp.  511;  Den- 
nistoun  v.  Stewart,  17  How.  U.  S.  COG ;  Lenox  v.  Leverett,  10  Mass.  1 ;  Wells  v. 
Whitehead,  15  Wend.  527. 


§§  110-12  NEGOTIABLE   INSTRUMENTS.  115 

§  110.  Contents  and  particulars  of  protest. — The  certifi- 
cate of  protest  must  contain  certain  essential  particulars,  in 
order  to  give  the  necessary  evidence  of  the  fact  of  dishonor. 
It  is  necessary  that  it  contain :  1.  The  time  of  presentment ;  2. 
The  place  of  presentment ;  3.  The  fact  and  manner  of  present- 
ment ;  4.  The  demand  of  payment ;  5.  The  fact  of  dishonor ; 
6.  The  name  of  the  party  by  whom  presentment  was  made ;  7. 
The  name  of  the  person  to  whom  presentment  was  made.1 
Usually,  the  facts  regarding  notice  are  embodied  in  it  by  the 
notary. 

§  111.  The  date  of  protest  must  expressly  appear,  for 
otherwise  it  does  not  appear  whether  the  instrument  was  dis- 
honored, and  therefore  entitled  to  protest ;  for  if  the  protest 
state  that  the  bill  was  "  this  day  protested,"  and  is  dated  on  a 
day  previous  to,  or  after,  the  day  of  maturity,  it  is  defective  on 
its  face.2  When  the  hour  of  the  day  is  not  stated,  it  will  be 
presumed  that  the  presentment  and  demand  were  made  at  the 
usual  and  proper  business  hours  of  the  day.3 

§  112.  As  to  the  place  of  presentment. — When  the  bill 
or  note  is  not  payable  at  a  particular  place,  it  is  not  absolutely 
necessary  to  state  at  what  place  the  presentment  and  demand 

1  Daniel  on  Neg.  Instruments,  Sec.  950,  and  see  Appendix  for  various  forms  of 
protest. 

By  the  Civil  Code  of  California,  Sec.  3227,  it  is  provided:  "  Protest  must  be 
made  by  an  instrument  in  •writing,  giving  a  literal  copy  of  the  bill  of  exchange, 
•with  all  that  is  written  thereon,  or  annexing  the  original;  stating  the  present- 
ment, and  the  manner  in  which  it  was  made ;  the  presence  or  absence  of  the 
drawee  as  the  case  may  be,  the  refusal  to  accept  or  to  pay,  or  the  inability  of 
the  drawee  to  give  a  binding  acceptance;  and  in  case  of  refusal  the  reason  as- 
signed, if  any;  and  finally,  protesting  against  all  the  parties  to  be  charged."  In 
Mississippi,  by  Act  of  April  5th,  1872,  it  is  provided  that  the  protest  by  a  notary 
shall  state :  whether  demand  was  made,  of  whom,  when,  and  where,  whether 
he  presented  such  bill  or  note,  whether  notices  were  given,  to  whom,  in  what 
manner,  where  the  same  was  mailed,  and  when  and  to  whom,  and  where  di- 
rected, and  every  other  fact  touching  the  same.  Sec.  9.  In  New  Jersey,  nota- 
ries are  required  to  note  in  a  book  a  protest  which  is  to  show  the  time  when, 
place  where,  and  upon  whom  demand  of  payment  was  made,  with  a  copy  of  the 
notice  of  non-payment,  how  served  and  the  time  when,  and  if  sent  by  post,  to 
whom  the  same  was  directed,  at  what  place  and  when  the  same  was  put  into 
such  post-office,  to  which  they  are  to  sign  their  names,  and  when  called  upon  in 
Court,  to  refer  to  such  record.  Nixon's  Dig.  p.  770. 

2  ^Valmsley  v.  Acton,  44  Barb.  312. 

SBurbank  v.  Beach,  15  Barb.  326;  De  "Wolf  v.  Murray,  2  Sandf.  166. 


116  NEGOTIABLE   INSTRUMENTS.  §§  113-14 

was  made,  if  the  fact  appears  that  it  was  presented  to  the  person 
entitled  to  pay  it ;  but  when  it  is  made  payable  at  a  particular 
place,  as  at  a  bank,  the  certificate  must  show  a  presentment  and 
demand  at  such  place.1 

§  113.  A  presentment  and  demand  for  payment  must 
appear,  and  are  usually  so  stated  in  the  certificate,  which  states 
that  presentment  of  a -certain  instrument  was  made  to  a  person, 
naming  him,  and  payment  demanded.  It  has  been  differently 
decided  whether  both  these  facts  must  appear,  namely,  the  fact 
of  presentment,  and  the  demand  of  payment.  It  seems  to  me 
that  a  presentment  at  the  time  of  maturity  implies  a  demand 
for  payment,  and  this  should  be  inferred ;  but  it  has  been  de- 
cided that  a  mere  statement  of  "  presentment  "  is  not  in  itself 
sufficient,  there  must  appear  further  a  demand.2  And  it  would 
also  seem  that  a  demand  implies  a  presentment  of  the  bill  or 
note,  and  so  it  was  decided  in  Louisiana ; 3  but  in  the  United 
States  Supreme  Court  (by  a  divided  Court,  however)  it  was  de- 
cided that  a  "  demand  "  did  not  necessarily  imply  a  "  present- 
ment." 4  It  will,  therefore,  be  the  proper  and  safer  course  to 
state  in  the  certificate  both  presentment  and  demand. 

§  114.  Other  facts  appearing  by  the  certificate. — The 

fact  of  dishonor  must  appear  either  by  a  refusal  of  the  party  to 
whom  presentment  was  made,  or  by  his  absence  from  the 
specified  place  or  his  regular  place  of  business  or  residence, 
with  no  one  to  act  for  Jiim  to  discharge  his  obligation.  With- 
out this  appearing  from  the  certificate,  it  cannot  be  regarded  as 
sufficient.5  It  is  not  material  what  words  are  used,  provided  the 
fact  of  a  refusal  or  a  failure  to  pay  is  apparent.  So,  if  the 
certificate  states  that  the  reason  of  protest  was  the  non-payment 
of  the  instrument,  it  is  sufficient.6 

1  People's  Bank  v.  Brooke,  31  Md.  7. 

2  Nave  v.  Richardson,  36  Mo.  130;  Farmers'  Bank  v.  Allen,  18  Md.  475.    See 
Farmers'  Bank  v.  Bowie,  4  Mdi  290. 

8  Nott  v.  Beard,  16  La.  An.  308. 
*  Musson  v.  Lake,  4  How.  262. 

When  a  protest  states  in  substance  a  demand  on  the  drawer  and  notice  of 
non-payment,  it  is  sufficient  in  point  of  form.    Crowley  v.  Barry,  4  Gill,  294. 

5  Arnold  v.  Kinloch,  50  Barb.  44;  Littledale  v.  Maberry,  43  Me.  264. 

6  Young  v.  Bennett,  7  Bush,  477. 


§  115  NEGOTIABLE   INSTRUMENTS.  117 

The  name  of  the  party  to  whom  presentment  was  made 
must  distinctly  appear,  and  when  a  demand  should  be  made 
from  a  firm,  it  must  appear  that  payment  or  acceptance  was 
demanded  from  a  person  who  was  a  member  of  the  firm.1 
When  payable  at  a  bank,  it  is  only  necessary  to  state  that  pay- 
ment was  demanded  there  without  naming  any  particular  person 
from  whom  payment  was  demanded.2 

Usually,  it  is  stated  at  whose  instance  the  protest  is  made,  and 
that  this  party  looks  to  certain  others  for  payment,  costs  of 
protest,  and  damages ;  but  it  has  been  decided  that  this  is  no 
essential  part  of  the  protest,3  though  it  is  the  better  practice  to 
conform  to  usage  and  state  at  whose  request  the  protest  was 
made. 

The  reasons  are  also  stated  for  refusal ;  but  in  general  this  is 
not  necessary,  the  fact  of  refusal  being  only  essential.  By  the 
Civil  Code  of  California,  the  reasons  assigned  for  a  refusal  are 
required  to  be  stated  in  the  protest.4 

§  115.  When  protest  unnecessary. — When  the  drawer  of 
a  bill  of  exchange  has  failed  to  place  funds  in  the  hands  of  the 
drawee  to  meet  it,  and  has  no  reasonable  expectation  that  it  will 
be  met,  a  demand  of  payment  and  protest  are  unnecessary  to 
hold  him.5 

In  regard  to  this,  a  writer  says  :  "  The  rule  is  of  ten  laid  down 
in  the  language  that  the  want  of  funds  excusing  the  holder 
from  giving  notice  ;  the  statement  of  it  in  this  form  arising 
from  the  fact  that,  when  the  bill  has  been  improvidently  drawn, 
it  turns  out  that  there  were  no  funds  to  meet  it.  But  the  con- 
verse proposition  is  not  true,  that  whenever  there  are  no  funds 
provided  to  meet  the  bill,  the  drawer  was  improvident  in  draw- 
ing it.  The  drawee  may  have  promised  to  accept  or  pay  for 
the  drawer's  accommodation,  or  have  come  under  an  obligation 
founded  on  legal  consideration  to  do  so.  And  the  true  criterion 
of  the  right  to  require  due  demand  and  notice  is  not  whether 

iOtsego  Co.  Bank  v.  Warren,  18  Barb.  290. 
sffildeburn  v.  Turner,  6  How.  U.  S.  69. 
3Duckert  v.  Van  Lilienthal,  11  "Wis.  5(3. 
<  Sec.  3227. 

5  Harness  v.  Davies  Co.  Sav.  Ass.  40  Mo.  357;  Merchants'  Bank  v.  Easley,  44 
Mo.  2S6;  Mehlberg  v.  Fisher,  24  Wis.  607. 


118  NEGOTIABLE   INSTRUMENTS.  §§  116-17 

the  drawer  had  funds  in  the  drawee's  hands,  but  whether  or  not 
the  drawer  had  a  right  to  expect  or  require  that  the  drawee 
would  honor  his  bill."  l 

Under  the  law  of  Indiana,  a  negotiable  note,  payable  at  a 
bank  in  that  State,  need  not  be  protested  for  non-payment  to 
hold  the  indorser;  notice  of  a  demand  and  non-payment  is 
sufficient.2  So  in  Georgia,  unless  a  note  is  payable  at  a  char- 
tered bank,  no  protest  ;s  necessary.3 


IV.    NOTICE  OF  PROTEST. 

§  116.  "Who  must  have  notice. — The  maker  of  a  bill  and 
the  indorsers  must  have  notice  of  protest,  in  order  to  fix  their 
liability  to  pay  in  case  of  default ;  and  so  likewise  must  the 
indorsers  on  a  promissory  note.  It  is  regarded  as  one  of  the  con- 
ditions of  the  contract  entered  into  on  the  part  of  the  maker 
and  indorsers,  that  they  shall  be  notified  of  any  failure  to  pay 
by  the  party  primarily  liable  ;  they  only  agree  to  pay  in  case  a 
certain  party  does  not.  The  law  is  very  strict  in  regard  to  this 
notice.  Thus,  if  a  note  has  been  indorsed  to  the  holder  in  con- 
ditional payment  of  a  debt,  a  failure  to  give  the  indorser  notice 
will  not  only  discharge  the  indorser  updn  the  note,  but  it  will 
also  operate  to  discharge  him  as  debtor  upon  the  original  con- 
sideration.4 

§  117.  Manner  of  giving  notice. — The  notice  may  be 
verbal  or  written ; 5  usuajly  it  is  written,  in  order  more  effectually 
to  be  produced  and  recorded  as  evidence.  Mere  knowledge  of 

1  Daniel  on  Neg.  Instruments,  Sec.  1074. 

2  Green  v.  Louthain,  49  Ind.  139. 
8  Salmons  v.  Hoyt,  53  Geo.  493. 

<  Shipinan  v.  Green,  1  Green,  (N.  J.)  251. 

In  Georgia,  (Code,  Sec.  2739)  the  indorsers  of  a  bill  or  note,  not  to  be  nego- 
tiated at  a  chartered  bank,  are  not  entitled  to  notice  of  non-payment  or  non- 
acceptance,  to  charge  them  as  indorsers.  Frank  v.  Longstreet,  44  Ga.  63.  There 
is  a  similar  statute  in  Indiana.  King  v.  Vance,  40  Ind.  246;  Parkinson  v.  Finch, 
45  Id.  629. 

5Boyd's  Admr.  v.  City  Sav.  Bank,  15  Gratt.  501  ;  Cuyler  v.  Stevens,  4  Wend. 
566 ;  Williams  v.  Bank  of  U.  S.  2  Pet.  97  ;  Housego  v.  Cowne,  2  M.  &  W.  348  ; 
Thompson  v.  Williams,  14  Cal.  160.  By  Civil  Code  of  California,  it  is  provided, 
Sec.  3143:  "A  notice  of  dishonor  may  be  given  In  any  form  which  describes  the 
instrument  with  reasonable  certainty,  and  substantially  informs  the  party  re- 
ceiving it  that  the  instrument  has  been  dishonored." 


§§  118-19  NEGOTIABLE   INSTRUMENTS.  119 

dishonor  does  not  constitute  notice,  for  notice  signifies  more  ; 
it  is  to  conie  from  a  certain  party,  with  a  demand  on  the  other, 
showing  that  the  latter  is  looked  to  for  payment.1 

A  verbal  notice  must  be  given  directly  to  the  party,  or  must 
be  sent  by  a  messenger  to  his  place  of  business  or  residence. 
Such  a  notice  is  more  liberally  construed  than  a  written  notice. 
Thus,  where  the  holder's  clerk  told  the  drawer  that  the  bill  had 
been  duly  presented,  and  that  the  acceptor  could  not  pay  it,  and 
the  drawer  replied  that  he  would  see  the  holder  about  it,  this 
was  held  to  be  sufficient  evidence  to  warrant  the  jury  in  finding 
that  the  fact  of  the  dishonor  of  the  bill  was  sufficiently  com- 
municated to  the  drawer.2 

§  118.  Form  of  the  notice. — Some  essential  particulars  are 
required  in  the  notice,  the  absence  of  which  renders  it  worthless. 
TThen  we-consider  what  the  notice  is  intended  to  show,  namely, 
the  fact  of  dishonor  of  a  certain  instrument,  and  that  the  party 
notified  is  looked  to,  by  the  one  who  gives  notice,  to  make  the 
obligation  good,  we  can  at  once  determine  what  essential  qual- 
ities the  notice  must  have.3  These  may  be  summarized,  and  the 
notice  will  then  contain  the  following  elements :  1.  Such  a  de- 
scription of  the  bill  or  note  as  may  apprise  the  party  of  the  in- 
strument dishonored.  2.  That  it  has  been  dishonored,  having 
been  duly  presented  for  acceptance  or  payment.  3.  That  the 
holder  looks  to  the  party  notified  for  payment.4 

§  119.  As  to  the  description  of  the  instrument. — The 

note  or  bill  should  be  described  in  such  terms  as  to  show  un- 
mistakably what  it  is — the  date,  the  amount,  the  name  of  the 
drawer  or  maker.5  The  law  is  satisfied  if  the  description  be 
such,  under  all  the  circumstances  of  the  case,  as  to  leave  no 
reasonable  doubt  in  the  mind  of  the  party  what  bill  or  note  was 
referred  to.6  The  notice,  therefore,  may  not  exactly  describe 

1  Juniata  Bank  v.  Hale,  16  S.  &  K.  157  ;  Gaunt  v.  Thompson,  7  C.  B.  400. 

2  Metcalfe  v.  Kichardson,  11  C.  B.  1011  (73  E.  Com.  L. ). 

3 In  Grates  v.  Beecher,  60  N.  Y.  184,  it  was  held  that  a  notary's  certificate  of 
the  protest  of  a  note,  in  the  usual  form,  contains  all  the  information  which  it  is 
necessary  to  give  an  indorser,  and  sending  him  a  copy  of  such  certificate  should, 
in  the  absence  of  any  proof  by  him,  be  deemed  a  sufficient  notice. 

4  Thompson  v.  Williams,  14  Cal.  162. 

6  Story  on  Notes,  Sec.  34i>. 

«  Shed  v.  Brett,  1  Pick.  401;  Gilbert  v.  Dennis,  3  Met.  495;  1  Pars.  N.  &  B.  472. 


120  NEGOTIABLE   INSTRUMENTS.  §  119 

the  note  ;  it  may  happen  to  misstate  some  particular,  and  yet  it 
will  be  held  sufficient  if  it  is  apparent  that  the  party  could  not 
have  been  misled  as  to  the  instrument  intended.  Thus,  in  a 
case  where  the  notice  described  the  note  in  a  bank  correctly, 
except  as  to  its  date,  and  it  appeared  that  there  was  no  other 
note  of  the  makers  indorsed  by  the  defendant  at  the  bank,  it 
was  held  that  the  notice  was  sufficient.1 

The  entire  omission  of  the  maker's  name  in  the  notice  of  dis- 
honor would  be  fatal ; 2  but  notice  to  the  acceptor,  describing  the 
bill  as  "  drawn  by  you,"  though  the  drawer  was  not  named,  there 
being  no  proof  that  he  had  drawn  or  indorsed  any  other  paper 
with  which  it  could  be  confounded,  and  it  being  otherwise  cor- 
rectly described,  was  held  sufficient.3  In  a  case  where  the  notice 
to  the  indorser  called  the  note  Jotham  Cushing's  note,  but  the 
name  was  in  fact  Jotham  Cushman,  in  an  action  against  the  in- 
dorser the  Court  directed  the  jury  to  find  for  the  plaintiff,  if 
they  believed  the  defendant  must,  from  the  notice,  have  neces- 
sarily known  what  note  was  intended,  and  this  direction  was 
held  to  be  correct.4 

A  misdescription  of  the  amount,  or  of  the  names  of  the 
parties,  or  the  time  the  paper  fell  due,  will  not  render  the  notice 
defective,  provided  it  is  certain  to  what  instrument  the  notice 
refers.6 

Thus,  a  notice  was  in  this  form  : 

"  $600.  Cayuga  Bank,  Auburn,  May  3d,  1848. 

"  SIR  :  Take  notice  that  S.  Warden's  note  for  three  hundred 
dollars,  payable  at  this  frank,  was  this  evening  protested  for  non- 
payment, and  the  holders  look  to  you  for  the  payment  thereof." 

The  amount  was  misstated,  it  being  in  the  note  $600  ;  but  it 
was  held  sufficient.6 

The  decisions  go  to  the  extent  of  holding  that  a  notice  to  the 
indorser  of  a  note,  simply  stating  the  name  of  the  maker,  the 

1  Mills  v.  Bank  of  U.  S.  11  Wheat.  431.    See  Cook  v.  Litchfield,  5  Sandf.  340. 

2  Home  Ins.  Co.  v.  Green,  19  N.  Y.  518. 
»  GUI  v.  Palmer,  29  Conn.  54. 

.4  Smith  v.  Whiting,  12  Mass.  6. 

6  Carter  v.  Bradley,  19  Me.  62;  Snoww.  Perkins,  2  Mich.  238;  McCune  v.  Belt, 
38  Mo.  291;  Moorman  v.  Bank  of  Alabama,  12  Ala.  353. 

6  Cayuga  Co.  Bank  v.  Warden,  1  Comst.  413;  S.  P.  Bank  of  Alexandria  v.  Swan, 
9  Pet.  33;  Bank  of  Rochester  v.  Gould,  9  Wend.  279;  Wood  v.  Watson.  53  Me.  300; 
Rowan  v.  Odenheimer.  5  Sm.  &  M.  44. 


§  120  NEGOTIABLE   INSTRUMENTS.  121 

amount,  and  the  fact  that  it  was  indorsed  by  the  party  to  whom 
notice  was  sent,  is  sufficient.  But  if  there  are  any  eircum- 
stances  which  caused  this  meager  description  to  mislead  the 
party  receiving  the  notice — as,  for  instance,  if  he  were  the  in- 
dorser  of  two  or  more  notes  to  which  the  terms  of  the  notice 
might  equally  apply — then  the  notice  might  be  void  for  uncer- 
tainty of  description.1  The  notice  should  be  signed  by  some 
one,  as  showing  at  whose  instance  it  was  given ;  it  need  not 
mention  him  as  the  holder.2 

§  120.  The  fact  of  dishonor. — It  is  sufficient  if  it  can  be 
reasonably  inferred  from  the  notice  that  the  instrument  was 
dishonored,  and  the  fact  need  not  be  expressly  stated ;  but  it 
must  appear  frpm  the  instrument,  by  the  use  of  some  word  or 
phrase,  that  the  note  or  bill  was  dishonored.  The  mere  state- 
ment that  it  has  not  been  paid  is  not  sufficient.3  More  than 
the  fact  of  non-payment  is  required ;  it  should  appear  that  a 
due  presentment  was  made.  Thus,  in  Page  v.  Gilbert,4  Walton, 
J.,  says  :  "  A  notice  to  the  indorser  of  a  note,  which  merely  in- 
forms him  of  the  non-payment  of  the  note,  and  demands  pay- 
ment of  him,  without  stating  that  payment  has  been  demanded 
of  the  maker,  or  giving  any  legal  excuse  for  not  demanding  it 
of  him,  is  not  sufficient  to  charge  the  indorser."  But  the  direct 
statement  that  the  instrument  has  been  "  dishonored  "  is  suffi- 
cient, for  that  implies  the  necessary  steps  to  dishonor,  a  present- 
ment and  demand.5  So  the  use  of  the  term  "  protested "  is 
sufficient  to  apprise  the  party  of  the  dishonor.6  So,  when  it 
was  stated,  "  your  bill  is  this  day  returned  with  charges," 7  or 

1  Daniel  on  Neg.  Instruments,  Sec.  979;  1  Pars.  N.  &  B.  473;  Story  on  Bills,  Sec. 
301. 

2  Bradley  v.  Davis,  26  Me.  45;  Gillespie  v.  Kevill,  14  Cal.  408;  Klockenbaum  v. 
Pierson,  16  CaL  375;  Walker  v.  State  Bank,  8  Miss.  704;  Shed  v.  Brett,  1  Pick. 
401. 

3  Dole  v.  Gold,  5  Barb.  490;  Lockwood  v.  Crawford,  18  Conn.  361;  Clark  v.  El- 
dridge,  13  Met.  96;  Armstrong  v.  Tliurston,  14  Md.  148;  Phillips  v.  Gould,  8  C.  & 
P.  355;  Strange  v.  Price,  10  Ad.  &  El.  125;  Hartley  v.  Case,  4  Barn.  &  C.  339 

4  60  Me.  488. 

5  Stocken  v.  Collin,  9  C  &  P.  653;  Lewis  v.  Gompertz,  6  M.  &  W.  400. 

G  Wheaton  v.  Willmarth,  13  Met.  422;  McFarland  v.  Pico,  8  Cal.  636;  Eastman 
v.  Tunnan,  24  Cal.  383;  Kilgore  v.  Buckley,  14  Conn.  362;  Smith  v.  Little,  10  N. 
H.  526;  Housatonic  Bank  r.  Laflin,  5  Cush.  546. 

'•  Grudgeon  v.  Smith,  6  Ad.  &  El.  499. 


122  NEGOTIABLE .  INSTRUMENTS.  §  121 

"  expenses," 1  or  "  with  charges  of  protested  exchange," 2  it  is 
sufficient. 

§  121.  As  to  notice  of  demand  for  payment  from  the 
party  notified,  it  is  the  usual  course  to  insert  it ;  but  it  is  held 
that  the  fact  of  apprising  the  party  of  the  dishonor  of  a  certain 
note  or  bill  inferentially  notifies  him  that  he  is  looked  to  for 
payment.  Thus,  in  United  States  v.  Carneal,3  Story,  J.,  giv- 
ing the  opinion  of  the  Court,  says :  "  A  suggestion  has  been 
made  at  the  bar,  that  a  letter  to  the  indorser,  stating  the  de- 
mand and  dishonor  of  the  note,  is  not  sufficient  unless  the  party 
sending  it  also  informs  the  indorser  that  he  is  looked  to  for  pay- 
ment. But  when  such  notice  is  sent  by  the  holder,  or  by  his 
order,  it  necessarily  implies  such  a  responsibility  over.  For 
what  other  purpose  could  it  be  sent?  We  know  of  no  rule 
which  requires  a  formal  declaration  to  be  made  to  this  effect. 
It  is  sufficient  if  it  may  be  reasonably  inferred  from  the  nature 
of  the  notice."  The  prevailing  rule  is,  therefore,  that  the  mere 
fact  of  giving  notice  to  the  party  implies  that  he  is  looked  to  for 
payment.4  But  the  safer  course  is  to  give  all  the  elements  of 
the  notice  before  laid  down.  It  is  now  decided  that  it  is  un- 
necessary to  accompany  the  notice  of  dishonor  of  a  foreign  bill 
of  exchange  with  a  copy  of  the  protest ; 5  but  information  of  the 
protest  should  be  sent  if  the  party  to  whom  notice  is  transmitted 
resides  abroad.6 

1  Everard  v.  "Watson,  1  El.  &  B.  801. 

2  De  Wolf  v.  Murray,  2  Saadf .  166. 

In  Reynolds  v.  Appleman,  41  Md.  615,  a  notarial  notice  of  protest  was  held 
sufficient  in  the  following  words:  "Baltimore,  December  23d,  1871— Reynolds  & 
Savin:  Please  take  notice  that  M.  D.  Savin,  C.  F.  Abbott's  note,  dated  Balti- 
more, September  20th,  1871,  payable  ninety  days  after  date  to  the  order  of  Rey- 
nolds &  Savin,  for  $340,  payable  at  the  Third  National  Bank,  and  by  you  in- 
dorsed, is  delivered  to  me  by  the  cashier  of  the  Western  National  Bank  for  pro- 
test, and  the  same  not  being  paid,  payment  thereof  having  been  demanded  and 
refused,  is  protested,  and  will  be  returned  to  the  said  cashier,  and  that  you  will 
be  held  liable  for  the  payment  thereof."  The  Court  held  that,  in  substance  and 
by  fair  implication,  this  notice  gave  all  that  was  necessary,  though  it  is  some- 
what informal. 

a  2  Pet.  543. 

4  Warren  v.  Gilman,  5  Shep.  360;  Cowles  v.  Harts,  3  Conn.  517;  Townsend  v. 
Lorraine  Bank,  2  Ohio  St.  345;  Bujrgess  v.  Vreeland,  4  N.  J.  71;  Story  on  Notes, 
Sec.  353. 

6  Hooker  v.  Anderson,  21  Wend.  372;  Goodman  v.  Harvey,  4  Ad.  &  El.  870; 
Wallace  v.  Agry,  4  Mason,  336. 

«  Rogers  v.  Stephens,  2  T.  B.  713. 


§  122  NEGOTIABLE   INSTRUMENTS.  123 

§  122.  The  party  who  gives  notice. — The  holder  or  his 
agent  is  the  proper  party  to  give  notice.  But  notice  <by  any 
party  whose  name  is  on  the  instrument  and  is  liable,  will  be  avail- 
able for  the  holder.  Thus,  suppose  the  fourth  indorser  be  the 
holder :  he  notifies  the  third,  the  third  the  second,  and  the 
second  the  first ;  the  latter  is  liable  to  all  the  parties.1 

In  case  the  holder  notifies  all  the  parties,  and  the  notice 
reaches  them,  then  an  intermediate  indorser  who  takes  up  the 
bill  or  note;  may  avail  himself  of  this  notice  against  any  of 
the  preceding  indorsers,  though  he  himself  has  not  given  the 
notice.  But  suppose  a  holder  to  have  attempted  to  give  notice 
and  failed,  using  all  due  diligence,  so  that  he  did  what  entitled 
him  to  recover,  and  that  a  party  on  the  note  takes  it  up,  can  the 
latter,  if  he  takes  up  the  note  or  bill,  recover  on  it,  though  he 
has  not  given  notice  ?  It  is  agreed  that  if  the  party  takes  up 
the  note  or  bill  from  the  one  who  was  entitled  to  recover  on  it, 
because  he  had,  under  the  circumstances,  used  diligence  in  giv- 
ing notice,  that  the  party  so  paying  is  substituted  to  the  rights 
of  the  other,  and  is  entitled  to  recover.2 

It  is  certain  a  mere  stranger  cannot  give  notice  to  inure  to 
any  one's  benefit.  The  party  bound  to  pay  has  a  right  to  notice 
from  some  one  who  has'  a  right  of  action  against  him,  and  who 
in  this  way  apprises  him  that  he  will  stand  on  his  rights.  It  is, 
therefore,  incompetent  for  one  whose  liability  is  not  fixed  to 
give  notice.3  The  question  has  arisen,  whether  an  acceptor 
could  give  notice.  In  the  case  of  Chapman  -y.  Keene,4  it  was 
decided,  overruling  other  cases,  that  notice  might  emanate  from 
another  party  besides  the  holder,  and  the  latter  might  avail  him- 
self of  it.  This  was  approved  in  Maryland,  in  Brailsford  v. 
Williams.5  In  Massachusetts,  it  has  been  held  that  a  drawee 
who  refuses  acceptance  cannot  give  a  valid  notice.6 

1  Hilton  ».  Shepherd,  G  East,  14.    See  Bachellor  v.  Prest,  12  Pick.  406 ;  Eenshaw 
t.  Triplett,  23 Mo.  213 ;  Stafford  v.  Yeates,  18  Johns.  327 ;  Bank  of  U.  S.  v.  Goddarrt, 
5  Mason,  366;  Chapman  v.  Keene,  3  Ad.  &  El.  193;  Jameson  v.  Swinton,  2 
Camp.  373;  Story  on  Bills,  Sec.  304. 

2  1  Pars.  N.  &  B.  627 ;  Thomson  on  Bills,  337.    See  Beale  v.  Parish,  20  N.  Y.  407. 

3  Story  on  Bills,  Sec.  304;  Bayley  on  Bills,  254;  Chanoine  v.  Fowler,  3  "Wend. 
173;  Harrison  v.  Ruscoe,  15  L.  J.  Exch.  110;  Cal.  Civil  Code,  Sec.  3142. 

<  3  Ad.  &  El.  193. 

6  15  Md.  157. 

6  Stanton  v.  Blossom,  14  Mass.  116. 


124  NEGOTIABLE   INSTRUMENTS.  §  123 

§  123.  Notice  by  an  agent. — Notice  may  be  given  by  an 
agent,  either  in  his  own  name  or  that  of  his  principal.1  In  this 
respect,  a  notary  is  the  agent  of  the  holder  of  a  negotiable  in- 
strument. In  case  of  a  note  given  for  collection,  the  party  to 
whom  it  is  intrusted  is  held  to  a  strict  liability  for  any  failure 
to  give  notice.2  So  banks  are  liable  for  failure  to  give  notice  of 
the  dishonor  of  notes  left  with  them  for  collection ;  they  are 
bound  to  employ  a  person  of  sufficient  competency  and  fidelity 
for  protesting  and  giving  notice.3 

It  should  be  remembered  that  by  the  common  law  it  is  no 
part  of  the  duty  of  a  notary  to  give  notice,  unless  he  is  specially 
employed  to  do  so ; 4  but  usually  notaries  are  constituted 
agents  of  a  party  for  this  purpose,  and  are  then  liable  for  any 
failure  to  give  notice.  And  now,  by  statute  in  several  of  our 
States,  it  is  incumbent  on  the  notary  to  give  notice.5 

When  a  bank  receives  paper  for  collection  in  a  distant  place, 
and  employs  an  agent  to  make  protest  or  give  notice,  it  is  often 
a  question  whether,  under  such  circumstances,  the  bank  is  liable 
for  any  default  of  its  sub-agent.  But,  on  general  principles,  one 
to  whom  is  intrusted  a  duty,  who  employs  an  agent  under  him,  is 
responsible  for  his  acts :  so  the  bank  is  therefore  held  liable ; 
but  it  may  show  that,  by  a  a  well-understood  custom  and  course 
of  dealing  in  the  mercantile  community,  this  was  the  usual  Avay 

1  "Woodthorpe  v.  Lawes,  2  M.  &  "W.  109;  Rogerson  «.  Hare,  1  Jur.  71;  Palmer 
v.  Whitney,  25  Ind.  58. 

2  Freedman's  Bank  v.  Perkins,  7  Shep.  292;  Bank  of  Missouri  v.  Vauglian,  36 
Mo.  90;  Allen  v.  Suydam,  20  Wend.  321;  Bank  of  Utica  v.  Smith,  18  Johns.  230; 
Bank  of  Utica  v.  McKinstef,-!!  Wend.  475. 

«  Smedes  v.  Utica  Bank,  20  Johns.  384. 

4  Harris  v.  Robinson,  4  How.  U.  S.  336;  Bank  of  Rochester  v.  Gray,  2  Hill,  227. 

5  In  Alabama,  it  is  incumbent  on  the  notary  to  give  notice  "according  to 
law."    Rev.  Code,  Sec.  1083.    By  Pol.  Code  of  California,  Sec.  794,  it  is  the  duty 
of  notaries,  "when  requested  acceptance  and  payment  of  foreign,  domestic, 
and  inland  bills  of  exchange  or  promissory  notes,  and  to  protest  the  same  for 
non-acceptance  and  non-payment." 

By  statute,  in  Illinois,  the  notary  is  required  to  give  notice  to  the  maker  and 
indorsers  on  the  same  day  of  protest,  or  within  forty-eight  hours  after  the  time 
of  protest.  Rev.  Stat.  1874,  p.  721.  In  Iowa,  it  is  provided:  "  The  notary  mak- 
ing demand  may  inform  the  indorser,  or  any  party  to  be  charged,  if  in  the  same 
town  or  township,  by  notice  deposited  in  the  nearest  post-office  to  the  parties  to 
"be  charged  on  the  day  of  demand,  and  no  other  notice  shall  be  necessary  to 
charge  said  party."  Code  1873,  Sec.  209.3.  In  Louisiana,  notice  is  required  by 
the  notary.  Dig.  Stat.  1870,  Sec.  2539.  So  in  Maine.  Rev.  Stat.  1871,  p.  327  ; 
in  Minnesota,  1  Bissell's  Stat.  p.  205  ;  in  New  Jersey,  Nixon's  Dig.  p.  771;  in 
Nebraska,  Gen.  Stat.  1873,  p.  494;  in  Mississippi,  Act  April  5th,  1872.  Sec.  9. 


§  124  NEGOTIABLE   INSTRUMENTS.  125 

to  perform  the  duty,  and  thus  exonerate  itself  from  any  liabil- 
ity.1 

§  124.  The  proper  person  to  receive  notice  is  the  party 
who  is  looked  to  for  payment  when  the  party  primarily  liable 
fails  to  pay,  as  the  maker  in  case  of  a  note,  the  acceptor  in  case 
of  a  bill.  Notice  given  to  a  general  agent  of  the  party  is  suf- 
ficient as  if  given  to  the  principal  in  person.2  So,  notice  of  pro- 
test to  charge  a  corporation  in  whose  name  the  indorsement  is 
made,  is  properly  served  on  the  general  agent  of  the  corporation.3 
But  notice  to  a  party's  attorney  or  solicitor,  unless  he  is  specially 
authorized  to  receive  it,  is  insufficient.4  If  a  paper  be  signed 
by  a  duly  authorized  agent  in  the  principal's  name,  notice 
should  be  given  to  the  principal,  who  is  the  party  liable.5  But 
when  an  agent  draws  a  bill  in  his  own  name,  but  for  account  of 
his  principal,  notice  must  be  given  to  the  agent,  who  is  the 
drawer.  A  notice  given  to  the  principal,  who  is  not  a  party  to 
the  bill,  is  not  sufficient.6 

In  cases  of  partnership,  notice  to  any  one  partner  is  notice  to 
the  firm.7  If  an  indorser  be  a  member  of  a  firm,  notice  to  the 
firm  is  sufficient.8  If  the  drawer  of  a  bill  be  in  fact  the  part- 
ner of  the  acceptor,  either  generally  or  in  the  single  adventure 
in  which  the  bill  made  a  part,  in  that  event  notice  of  dishonor 
by  the  holder  to  the  drawer  need  not  be  given  ;  for  the  knowl- 
edge of  one  partner  is  the  knowledge  of  the  other,  and  notice 
to  one  is  notice  to  the  other.9  And  if  one  of  the  firm  be  dead, 
notice  to  the  survivor  is  sufficient.10 

In  case  of  death  of  the  party  to  be  notified,  notice  should  be 
sent  to  his  executor  or  administrator,  if  there  be  any,  and  they 
can  be  ascertained,  but  if  not,  a  notice  addressed  to  the  deceased 

iFabens  v.  Mercantile  Bank,  23  Pick.  382;  Dorchester  Bank  ».  New  England 
Bank,  1  Cush.  177.  See  further  on  this  point  Sec.  135. 

2  Cross  v.  Smith,  1  M.  &  Sel.  545;  Fassin  v.  Hubbard,  65  N.  Y.  471. 

8  Bank  of  Auburn  v.  Putnam,  1  Abb.  App.  Dec.  80. 

4  Louisiana  State  Bank  v.  Ellery,  16  Mart.  87. 

s  Clay  v.  Oakley,  17  Mart.  137. 

6  Grosvenor  r.  Stone,  8  Pick.  79. 

7Gowan  v.  Jackson,  20  Johns.  176;  People's  Bank  v.  Keech,  26  Md.  521;  Story 
on  Bills,  Sec.  308. 

SRhett  v.  Poe,  2  How.  U.  S.  457. 

» Id. 

10  Hubbard  ».  Matthews,  54  N.  Y.  50. 


126  NEGOTIABLE    INSTRUMENTS.  §  125 

by  name  would  be  sufficient.1  Notice  to  one  of  several  executors 
or  administrators  would  be  sufficient.2  It  has  been  decided  that, 
notice  addressed  to  "  the  estate  "  would  not  suffice,  as  that  term 
applies  as  well  to  the  heir  at  law  as  to  the  executor  or  adminis- 
trator.3 

In  case  of  bankruptcy,  it  is  best  to  give  notice  to  the  bank- 
rupt as  well  as  to  his  assignee;  but  if  no  assignee  has  been 
appointed,  notice  to  the  bankrupt  is  sufficient.4  It  has,  however, 
been  thought  sufficient  to  notify  the  bankrupt  alone.5 

Notice  left  with  a  clerk  at  the  party's  place  of  business, 
without  proof  as  to  the  person  with  whom  it  was  left,  is  suffi- 
cient, and  proof  that  such  person  was  not  the  party's  agent  has 
been  held  irrelevant,  notice  being  left  at  the  right  place.6 

§  125.  Notice,  when  the  parties  reside  in  the  same 
place,  is  in  general  personal,  unless  otherwise  provided  by 
statute.7  Where  both  parties  live  in  the  same  town,  the  sender 
of  the  notice  is  bound  to  show  that  it  was  actually  received  by 
the  indorser  in  due  season.  If  notice  is  sent  by  mail,  it  will  not 
be  sufficient,  unless  it  be  shown  it  was  actually  received  in  due 
time.8  But  now,  in  large  cities  and  towns,  since  the  mails  are 
delivered  several  times  during  the  day,  it  is  allowed  generally  by 
statute  to  deposit  a  notice  in  the  post-office  when  the  parties  re- 
side in  the  same  city,  and  the  mere  deposit,  without  it  being  shown 
that  it  was  actually  received,  will  be  sufficient.9  "  In  large  com- 

1  Maspers  v.  Pedesclaux,  22  La.  An.  227  ;  Oriental  Bank  v.  Blake,  22  Pick.  206 ; 
Cayuga  Bank  v.  Bennett,  5  Sill,  236  ;  1  Pars.  N.  &  B.  501 ;  Gal.  Civil  Code,  Sec. 
314G. 

2  Beales  v.  Peck,  12  Barb.  245  ;  Lewis  v.  Bakewell,  G  La.  An.  359. 

3  Massachusetts  Bank •«.  Oliver,  10  CusL.  557. 
*  Ex  parte  Moline,  19  Ves.  216. 

si  Pars.  N.  &B.  500. 

6Edson  v.  Jacobs,  14  La.  An.  494  ;  Bank  of  Louisiana  v.  Mansaker,  15  La.  An. 
115  ;  Mechanics'  Bank  Assn.  v.  Place,  4  Duer,  212. 

''  Cabot  Bank  v.  Warner,  10  Allen  522. 

s  Bowling  v.  Harrison,  G  How.  U.  S.  248  ;  Shelbourne  Falls  Nat.  Bank  r. 
Townsley,  102  Mass.  177  ;  Boyd  v.  City  Savings  Bank,  15  Gratt.  501 ;  Barnes  v. 
Caldwell,  3  Pittsb.  33G. 

9  By  Laws  of  New  York  of  1857,  Chap.  416,  such  notices  may  be  served  by  de- 
positing them — with  the  postage  thereon  prepaid — in  the  post-office  of  the  city 
or  town  where  such  promissory  note,  check,  draft,  or  bill  of  exchange  was  pay- 
able, or  legally  presented  for  payment  or  acceptance,  directed  to  the  iiidorser 
or  drawer  at  such  city  or  town.  And  in  Requa  v.  Collins,  51  N.  Y.  144,  it  was 
held  that  the  degree  of  diligence  required  under  this  statute,  to  ascertain  the 


§  126  NEGOTIABLE   INSTRUMENTS.  127 

mercial  towns,  the  uniform  practice,"  says  the  Court  in  Bell  v. 
Hngerstown  Bank,1  "  now  is  to  reach  the  party  to  be  affected 
with  notice,  through  the  post-office,  when  both  reside  within 
the  limits  of  the  penny-postman ;  but  it  must  be  shown  to  have 
been  put  in  in  time  to  be  delivered  before  the  expiration  of  the 
day  following  the  refusal."  Thus,  it  has  been  held,  that  where 
a  bill  was  dishonored  in  Philadelphia,  and  notice  sent  to  an  in- 
dorser  in  Providence,  the  latter  might  give  notice  to  a  previous 
party,  residing  in  Providence,  through  the  post-office.2  Some- 
times the  custom  or  usage  of  banks  in  certain  places,  in  the 
absence  of  any  statutory  provision,  will  permit  notice  being  sent 
through  the  mail.3 

§  126.  Who  may  be  regarded  as  living  in  the  same  place 

is  an  important  question  to  determine,  when  notice  may  be  sent 
through  the  mail.  The  best  authorities  hold  that  even  if  a  per- 
son lives  a  short  distance  from  a  town  or  city,  but  is  in  the 
habit  of  receiving  his  letters  at  a  particular  office  there,  a  notice 
deposited  in  that  office  will  be  sufficient.  This  is  the  view  of 
the  United  States  Supreme  Court,  and  is  generally  followed;4 
though  it  has  sometimes  been  held  the  notice  should  be  sent  to 
the  post-office  nearest  him.5 

residence  of  the  party,  is  no  greater  than  that  required  by  the  common  law  in  a 
case  where  payment  differs  from  the  place  of  residence.  By  Civil  Code  of  Cal- 
ifornia, Sec.  3144,  notice  may  be  given  under  these  circumstances  through  the 
mail.  In  Georgia,  a  deposit  in  the  post-office,  under  Sec.  2781  of  the  Code,  is  suf- 
ficient. McXatt  v.  Jones,  52  Ga.  473.  In  Minnesota,  notice  may  be  given  through 
the  post-office,  under  these  circumstances.  1  Bissell's  Stat.  205.  Also  in  Iowa. 
Code,  Sec.  £035.  In  Illinois,  it  is  provided  that  the  notice  must  be  personal  if  the 
parties  reside  in  the  town,  precinct,  or  village  where  the  protest  was  made,  or 
within  a  mile  thereof  ;  but  if  more  than  a  mile,  notice  may  be  given  by  mail  or 
other  safe  conveyance.  If  the  city  where  the  protest  is  made  contains  10,000  or 
more  inhabitants,  the  notice  may  be  forwarded  by  mail.  Rev.  Stat.  1874,  p.  721. 
17  Gill.  210. 

2  Ray  v.  Porter,  42  Ala.  327  ;  Eagle  Bank  v.  Hathaway,  5  Met.  213.    See,  to 
the  same  point,  Manchester  Bank  v.  Fellows,  8  Fost.  313 ;  Hartford  Bank  v. 
Stedmau,  3  Conn.  489. 

3  Bowling  v.  Harrison,  G  How.  U.  S.  248  ;  Gindrat  v.  Mechanics'  Bank,  7  Ala. 
324  ;  Chicopee  Bank  v.  Eager,  9  Met.  583. 

4  Bank  of  Columbia  v.  Lawrence,  1  Pet.  578;  and  see,  to  the  same  effect,  Gist 
v.  Ly brand,  3  Ohio,  307:  Bell  v.  State  Bank,  7  Blackf.  457;  Jones  t.  Lewis,  8 
AVatts  &  S.  14;  Barrett  v.  Evans,  28  Mo.  323;  Bondurant  v.  Everett,  1  Met.  Ky, 
C58. 

5  Ireland  v.  Kip,  11  Johns.  231;  Edwards  on  Bills,  602. 


128  NEGOTIABLE    INSTRUMENTS.  §  127 

§  127.  When  notice  is  personally  served,  it  should  be  at 
his  residence  or  established  place  of  business  ;  and  when  no 
one  is  found  at  the  place  of  business,  it  is  held  that  one  is  not 
bound  to  proceed  to  his  private  residence  and  give  notice.1 
And  when  a  party  has  two  or  more  places  of  business  in  the 
same  town,  notice  may  be  sent  to  either.  When  notice  is 
sought  to  be  given  at  the  private  dwelling  of  a  party,  it  is  suf- 
ficient to  leave  it  with  the  wife,  private  secretary,  or  any  other 
person  on  his  premises.2 

A  certificate  of  a  notary — "  left  at  his  house  at " — would 

be  sufficient  to  answer  the  requirement  of  the  law.3  But  it  was 
held  in  the  same  case  that  proof  that  notice  was  left  with  a  boy 
in  the  yard,  who  said  that  he  was  the  indorser's  son,  and  who 
went  toward  the  house,  was  insufficient. 

It  will  not  do  merely  to  leave  notice  in  a  building  where  a 
party  transacts  his  business — it  must  be  at  his  very  place  of  bus- 
iness.4 If  the  dwelling  or  apartments  occupied  by  the  indorser 
be  closed,  and  he  had  left  the  place,  it  would  be  of  no  use  to 
proceed  further.5  When  a  party  lives  at  a  private  boarding- 
house,  it  is  to  all  intents  and  purposes  his  residence,  and  notice 
given  there  to  a  person  belonging  to  the  house,  in  his  absence, 
is  sufficient.6  If  a  party  live  at  a  public  house,  and  if  after  in- 
quiry the  notary  is  informed  that  he  is  not  in,  it  would  be  suf- 
ficient to  leave  a  notice  at  his  room,  or  at  the  door  of  his  room.7 

But  in  all  cases  it  should  be  the  duty  of  the  notary  to  in- 
quire for  him  first ;  for  when  it  does  not  appear  that  he  was 
really  at  the  hotel,  oc  that  the  notary  inquired  for  him,  or  that 
notice  was  left  with  some  competent  person  for  him,  the  omis- 
sion would  be  fatal.8 

1  Goldsmith  v.  Blane,  1  Maule  &  S.  554;  Bayley  on  Bills,  17G;  Lord  v.  Apple- 
ton.  15  Me.  179;  Williams  v.  Bank  of  U.  S.  2  Pet.  96;  Grinman  v.  Walker,  <) 
Iowa,  42G;  Kevins  v.  Bank,  10  Mich.  547;  Van  Vechten  v.  Pruyn,  3  Kern.  549. 

2Blakely  v.  Grant,  6  Mass.  38G;  Fisher  v.  Evans.  5  Binn.  542;  Cromwell  v 
Hynson,  2  Esp.  511;  Merz  v.  Kaiser,  20  La.  An.  377. 

«  Adams  v.  Wright,  15  Wis.  408. 

4  Kleinman  v.  Boernstein,  32  Mo.  311. 

6  Howe  v.  Bradley,  19  Me.  35. 

e  Bank  of  U.  S.  v.  Hatch,  6  Pet.  250. 

1  Howe  v.  Bradley,  19  Me.  31. 

8  Ashley  v.  Gunton,  15  Ark.  415. 

If  no  one  be  found  at  the  party's  place  of  residence,  a  notice  put  in  the  key- 
hole is  sufficient.  Stewart  v.  Eden,  2  Cal.  121. 


§§  128-9  NEGOTIABLE   INSTRUMENTS.  129 

§  128.  Notice,  parties  residing  in  different  places. — The 

mail  is  the  usual  mode  of  giving  notice  when  the  parties  reside 
in  different  places.  A  party,  under  these  circumstances,  fully 
discharges  his  duty  if,  at  the  proper  time,  he  deposits  a  notice, 
postage  prepaid,  in  the  mail,  and  he  is  not  bound  then  to  show 
that  such  notice  was  actually  received,  because  he  is  not  held 
responsible  for  any  miscarriage  of  the  mail.  This  notice  should 
be  directed  to  the  post-office  nearest  where  the  party  resides, 
unless  he  is  in  the  habit  of  receiving  his  letters  at  another  office, 
and  then  notice  should  be  directed  there.1 

When  a  party,  by  a  memorandum  on  the  paper,  indicates  a 
place  of  residence  or  business,  notice  should  be  sent  there.2 
When  there  are  two  post-offices  in  the  town  where  the  party 
resides,  notice  may  be  directed  to  the  town  generally,  unless  the 
holder  knows,  or  has  reason  to  know,  that  he  receives  his  letters 
at  one  of  them,  in  which  case  notice  should  be  directed  there.3 

If  a  party  has  a  place  of  residence  at  a  place  where  a  bill  or 
note  is  protested,  and  a  place  of  business  somewhere  else,  it 
is  wrong  to  send  notice  by  mail,  to  his  place  of  business.  Thus, 
in  New  York,  an  indorser  was  held  to  be  discharged,  who  had 
a  known  residence  in  the  village  where  the  note  was  protested, 
and  was  generally  at  home  three  days  in  the  week,  when  the 
notice  was  sent  by  mail  to  another  city  where  his  place  of  busi- 
ness was,  where  he  spent  four  days  of  the  week  and  received 
his  letters  and  papers,  because  there  was  no  evidence  that  the 
notice  actually  reached  him  in  due  time,  so  as  to  render  it  equiv- 
alent to  personal  notice.4 

§  129.  When  parties  reside  temporarily  in  a  place,  as 

in  the  case  of  members  of  a  legislature  or  of  Congress,  while 
the  bodies  they  attend  are  in  session,  it  will  be  sufficient  if 
notice  be  sent  to  them  there,  or  left  at  their  place  of  residence. 
Thus,  in  the  case  of  Chouteau  v.  Webster,5  a  notice  sent  to  Mr. 

1  Bank  of  Geneva  v.  Hewlett,  4  Wend.  328;  Mercer  v.  Lancaster,  5  Barb.  1GO. 

2  Peters  v.  Hobbs,  25  Ark.  07;  Morris  v.  Husson,  4  Sandf.  93;  Baker  v.  Morris, 
25  Barb.  138;  Farmers'  Bank  v.  Battle,  4  Humph.  86. 

8  Morton  v.  Westcott,  8  Cush.  425;  Downer  v.  Remer,  21  Wend.  10;  Cabot 
Bank  v.  Russell,  4  Gray,  167. 

4  Van  Vechten  v.  Pruyn,  3  Kern.  549. 

5  G  Met.  1. 

NOTARIES — 9. 


130  NEGOTIABLE    INSTRUMENTS.  §  130 

Webster  while  he  was  a  senator,  and  the  Senate  was  in  session, 
was  held  sufficient.  But  after  the  adjournment  of  the  body,  it 
is  insufficient  to  send  notice  to  the  member  where  the  body  was 
in  session ;  it  should  then  be  sent  to  the  party's  permanent  place  of 
residence.1  And  while  Congress  is  in  session,  it  will  not  be  suffi- 
cient to  deposit  notice  to  the  member  in  the  post-office  of  the  Senate 
or  House  of  Representatives,  as  it  should  be  served  personally  by 
a  party  in  the  same  place  at  his  residence,  or  where  he  might 
personally  be.2  It  has  been  held  that  even  when  the  indorser, 
who  was  a  member  of  Congress,  was  known  to  be  in  Wash- 
ington, notice  sent  to  his  residence  in  his  district  was  sufficient.3 

§  130.  The  place  where  notice  should  be  sent  is  gener- 
ally the  place  named  in  the  bill  where  it  was  dated ;  but  this  is 
not  exclusively  and  conclusively  the  proper  place.  However,  in 
the  absence  of  any  other  proof  that  the  drawer  resided  else- 
where, this  would  be  prima  facie  the  proper  place  to  send 
notice  to  him.  In  Alabama,  the  place  where  an  indorser  should 
receive  notice  is  primarily  the  place  where  he  lived  at  the  time 
of  the  indorsement ;  but  the  holder  is  held  to  an  obligation  to 
make  inquiry  in  case  of  removal.4  When  the  removal  was 
made  under  circumstances  of  peculiar  notoriety,  it  was  held  in- 
sufficient to  send  notice  to  the  prior  place  of  residence.5 

In  the  United  States,  it  is  strictly  held  to  be  the  duty  of  the 
holder  or  notary  not  merely  to  give  notice  at  the  place  where 
the  indorser  resided  when  the  indorsement  was  made,  if  he  is 
not  found  there,  but  fre  should  use  due  diligence  to  ascertain 
his  place  of  residence.6 

Thus,  in  Wolf  v.  Burgess,7  it  was  held  that  it  was  negligence 
in  a  notary,  when  an  indorser  lived  out  of  St.  Louis,  not  to  as- 
certain his  address  by  inquiring  from  the  cb-indorsers,  who  knew. 
But  in  a  case  where  the  notary  inquired  from  an  assistant  in- 
ternal revenue  assessor  for  a  party's  residence,  and  sent  notice 

1  Bayley  v.  Chubb,  16  Gratt.  284. 

2  ffill ».  Norvell,  3  McLean,  583. 
8  Marr  v.  Johnston,  9  Yerg.  1. 

4  Tyson  v.  Oliver,  43  Ala.  455;  Sprague  v.  Tyson,  44  Ala.  340. 
6  Planters'  Bank  v.  Bradford,  4  Humph.  39. 

CBarnwell  v.  Mitchell,  3  Conn.  101;  Lovrery  v.  Scott,  24  Wend.  358;  Foard  v. 
Johnson,  2  Ala.  565;  Pierce  v.  Strathers,  27  Penn.  St.  249. 
'  59  Mo.  583.    See,  also,  Gilchrist  v.  Donnell,  53  Mo.  591. 


§  131  NEGOTIABLE   INSTRUMENTS.  131 

to  the  place  directed,  which  notice  was  not  received  until  nine 
days  afterward,  it  was  held  that  he  used  due  diligence,  and  the  in- 
dorser  was  liable.1 

In  Kentucky,  it  has  been  held  that  a  notary  public  is  required 
to  give  or  send  the  notices  of  the  dishonor  of  commercial  paper 
protested  by  him,  to  the  parties  sought  to  be  held  liable  when 
he  knows  their  place  of  residence,  and  not  in  the  cases  in  which 
it  might  be  within  his  power  to  ascertain  the  fact.2 

In  Wood  v.  Corl,3  the  note  was  dated  at  Buffalo,  and  the  no- 
tary testified  that  it  was  reported  that  the  indorser  lived  there. 
A  notice  to  the  indorser  sent  to  Buffalo  was  held  sufficient.  In 
a  late  case,  where  the  indorser  of  a  note,  payable  one  year  after 
date,  resided  at  Rochester  at  the  time  of  the  indorsement  and 
ten  years  prior  thereto,  and  continued  to  reside  there  until  six 
months  before  it  fell  due,  and  information  was  given  by  the  in- 
dorser's  relatives  that  she  continued  to  reside  there,  it  was  held 
that  notice  addressed  to  Rochester  was  sufficient.4 

§  131.  Time  within  which  notice  should  be  given. — 

Formerly,  the  time  within  which  notice  should  be  given  was 
stated  to  be  within  a  reasonable  time  after  dishonor ; 5  but  now 
there  is  a  definite  period  fixed,  within  which  notice  must  be 
given  to  a  party,  or  he  will  be  discharged.  It  is  now  well 
established  that  as  soon  as  the  dishonor  of  the  note  or  bill 
occurs,  notice  may  be  at  once  given,  and  a  party  is  not  under  an 
obligation  to  wait  until  the  close  of  the  business  day  on  which, 
the  dishonor  took  place.6 

Thus,  in  a  late  case  in  Maine  it  was  held  that  a  notice  served 
upon  an  indorser,  upon  the  last  day  of  grace,  after  previous  de- 
mand upon  and  refusal  by  the  maker  on  the  same  day,  is  not 
premature.7 

Notice  is  not  necessary  on  the  very  day   of  dishonor ;  the 

1  Harger  v.  Demis,  1  Thomp.  &  C.  460. 
2Mulholland  v.  Samuels,  8  Bush,  63. 
s  4  Met.  203. 
4Eequa  v.  Collins,  51  N.  Y.  148. 

5  Story  on  Bills,  Sec.  285. 

6  Bank  of  Alexandria  v.  Swan,  9  Pet.  33;  Coleman  v.  Carpenter,  9  Barr,  178; 
Ex  parte  Moline,  19  Ves.  216. 

7  King  v.  Crowell,  61  Me.  244. 


132  NEGOTIABLE    INSTRUMENTS.  §  131 

next  day  is  the  proper  and  the  usual  time  to  give  the  notice. 
When  the  holder  and  the  party  entitled  live  in  the  same  place, 
the  holder  has  the  whole  of  the  following  day  after  dishonor  to 
give  notice,  either  at  the  place  of  business  during  business 
hours,  or  at  one's  residence  at  any  time  before  the  hours  of  rest.1 
The  obligation  on  a  holder,  when  notice  is  given  through  the 
mail,  is  to  send  the  notice  by  the  first  mail  leaving  the  day  after 
dishonor,  provided  the  mail  is  not  sent  off  at  a  very  early  or  in- 
convenient hour.2  Some  have  expressed  the  opinion  that  it 
would  be  sufficient  to  send  the  notice  by  any  mail  leaving  the 
day  after  dishonor.  This  was  the  opinion  of  Kent.3  "  By  the 
next  practicable  mail  "  after  the  day  of  dishonor  is  the  language 
very  often  adopted ; 4  Chitty  lays  down  the  rule  very  strictly. 
He  holds  it  the  duty  of  the  holder  to  give  notice  by  the  first 
mail  after  the  day  of  dishonor,  whether  the  post  sets  off  from 
the  place  where  he  is,  early  or  late.5  Story  thought  this  state- 
ment of  the  obligation  too  strict.  He  says  :  "  It  would  be  more 
correct  to  say  that  the  holder  is  entitled  to  one  whole  day  to 
prepare  his  notice,  and  that,  therefore,  it  will  be  sufficient  if  he 
sends  it  by  the  next  post  that  goes  after  twenty  hours  from  the 
time  of  the  dishonor."6  The  California  Civil  Code  has  pro- 
vided on  this  head :  "  When  notice  of  dishonor  is  given  by 
mail,  it  must  be  deposited  in  the  post-office  in  time  for  the  first 
mail  which  closes  after  noon  of  the  first  business  day  succeeding 
the  dishonor,  and  which  leaves  the  place  where  the  instrument 
was  dishonored  for  the  place  to  which  the  notice  should  be 
sent." '  This  gives  a. definite  rule,  and  a  very  convenient  one.8 

1  Adains  v.  "Wright,  15  Wis.  408;  Parker  v.  Gordon.  7  East,  385;  Story  on  Bills, 
Sec.  290;  Jameson  v.  Swinton,  2  Taunt.  224. 

2Fullerton  v.  Bank  U.  S.  1  Pet.  G05;  U.  S.  v.  Barker,  12  Wheat.  559;  Lawson 
v.  Farmers'  Bank,  1  Ohio  St.  203;  1  Am.  Lead.  Gas.  390;  Story  on  Bills,  Sec.  288; 
1  Parsons  N.  &  B.  511. 

3  3  Com.  106,  NoteE. 

4  Haskell  v.  Boardman,  8  Allen,  40. 
6  Chitty  on  Bills,  486. 

6  Story  on  Bills,  Sec.  290. 

i  Sec.  3148. 

8  The  notice  is  held  in  time  if  sent  off  during  some  mail  the  next  day  after 
dishonor.  Goodman  v.  Norton,  17  Me.  381;  Howard  t;.  Ives,  1  Hill,  263;  'Whit- 
well  v.  Johnson,  17  Mass.  449;  West  River  Bank  v.  Taylor,  7  Bosw.  46G;  1  Par- 
sons N.  &  B.  510, 511.  Notice  of  protest  for  non-payment  of  r  ^romissory  note, 
personally  delivered  on  the  proper  dav.  is  not  vitiated  by  being  post-dated  by 


§§  132-4  NEGOTIABLE    INSTRUMENTS.  133 

§  132.  What  hour  next  day  is  reasonable  for  the  send- 
ing of  the  notice  by  mail  must  depend  largely  upon  the  business 
customs  of  a  place,  and  no  definite  rule  could  very  well  be 
fixed  as  to  what  may  be  properly  an  inconvenient  hour.  Seven 
o'clock  in  the  morning  has  been  held  not  an  unreasonably  early 
hour ; 1  but  sunrise  has  been  held  certainly  too  early.2  It  has 
been  held  that  where  the  mail  closes  at  half-past  ten  A.  M. 
notice  should  have  been  sent  by  it ; 3  and  where  it  closed  at  10 
A.  M.  ; 4  and  likewise  where  it  closed  at  ten  minutes  past  9  A.  M.5 
But  in  another  locality,  half-past  nine  A.  M.  has  been  held  un- 
reasonably early.0 

§  133.  When  holidays  intervene,  they  are  counted  out,  as 
Christmas  day,  Sunday,  the  Fourth  of  July,  or  any  day  of 
public  thanksgiving,  or  other  day  upon  which  a  man  is  prohib- 
ited by  his  religion  to  transact  secular  affairs.7  In  these  cases 
notice  is  given  on  the  next  following  business  day. 

"  But  notice  is  not  invalid  because  given  on  the  Fourth  of 
July  or  other  holiday ;  and  although  notice  need  not  be  for- 
warded until  after  dishonor,  or  of  its  reception,  still  it  is  not 
irregular  or  improper  to  do  so,  if  the  party  chooses,  the  time 
being  allowed  for  his  convenience.  If  notice  is  received  on 
Sunday,  it  need  not  be  forwarded  until  the  Tuesday  following, 
as  he  is  not  bound  to  open  the  letter  containing  it,  or  to  recog- 
nize it  until  Monday ;  and  if  received  on  Saturday,  it  need  not 
be  forwarded  until  Monday."  8 

§  134.  A  holder  has  a  day  to  give  notice  to  his  prede- 
cessor.— Thus,  suppose  there  are  six  indorsers;  the  sixth  has 

mistake  a  day  later,  the  mistake  being  one  which  could  not  have  misled  the  in- 
!  dorser.  Lennig  v.  Tobey,  4  Penn.  L.  Journ.  275.  But  the  indorser  was  dis- 
charged when  a  note  was  dishonored  on  the  1st  of  July,  and  notice  served  on 
the  following  day  was  misdated  as  of  the  30th  of  June.  De  La  Hunt  v.  Higgins, 
9  Abb.  Pr.  422. 

1  Stephenson  t.  Dickson,  24  Penn.  St.  148. 

2  Deminds  v.  Kirkman,  1  Sm.  &  M.  G44. 
*  U.  S.  v.  Barker,  4  Wash.  C.  C.  464. 
*Haskell  v .  Boardman,  8  Allen,  38. 
6Lawson  t>.  Farmers'  Bank,  1  Ohio  St.  206. 

6  Burgess  v.  Vreeland,  4  N.  J.  71 ;  Hawkes  v.  Salter,  4  Bing.  715. 
"  Chitty  on  Bills,  488  ;  1  Pars.  N.  &  B.  515  ;  Cuyler  v.  Stevens,  4  "Wend.  5GG  ; 
Lindo  v.  Unsworth,  2  Camp.  G02  ;  Martin  v.  Ingersoll,  8  Pick.  1. 
8  Daniel  on  Keg.  Instruments,  Sec.  1043. 


134  NEGOTIABLE   INSTRUMENTS.  §  135 

one  day  to  notify  the  fifth,  he  another  day  to  notify  the  fourth, 
and  so  on.  But,  in  practice,  it  is  usual  for  all  the  indorsers  to 
be  sent  notice  simultaneously,  when  the  notary  makes  protest. 
In  illustration  of  the  rule,  it  was  held  that  an  indorser  who  re- 
ceived notice  at  eight,  or  half-past  eight  in  the  morning,  was 
not  bound  to  send  it  to  a  prior  party  by  mail  leaving  at  twelve 
o'clock  the  same  day.1  But  it  is  well  to  observe  that  the  over- 
diligence  of  one  party  will  not  avail  the  tardiness  of  another. 
Every  one  of  the  intermediate  parties,  so  far  as  he  himself  is 
concerned,  must  show  due  diligence,  or  otherwise  he  will  lose 
his  rights.2 

§  135.  Liability  of  notary  in  reference  to  negotiable 
paper. — A  notary  who  fails  to  make  a  protest  when  it  is  required, 
or  who  neglects  to  give  proper  notice  to  parties  to  be  charged  in 
case  of  dishonor,  will  be  unquestionably  liable  for  the  loss  occa- 
sioned thereby.  In  fact,  he  stands  in  precisely  the  same  position 
as  any  other  agent  who  may  be  employed  about  a  particular 
business,  and  will  be  held  responsible  for  his  laches  and  mistakes 
when  loss  is  occasioned  thereby  to  the  party  employing  him.3 
It  is  well  settled  that  a  bank  receiving  commercial  paper  as 
agent  for  collection,  properly  discharges  its  duty,  in  case  of  non- 
payment, by  placing  the  paper  in  the  hands  of  a  notary  public, 
to  be  proceeded  with  in  such  manner  as  to  charge  the  parties  to 
it,  and  secure  the  rights  of  the  owner ;  and  the  bank  is  not  lia- 
ble for  the  failure  of  the  notary  public  to  discharge  his  duty ; 
but  in  such  a  case  the.notary  is  the  sub-agent  of  the  holder,  and 
is  responsible  directly  to  him.4  In  Commercial  Bank  of  Ken- 
tucky v.  Varnum,5  it  was  decided  that  where  a  notary  is  directed 
to  protest  a  bill  on  the  wrong  day,  by  a  bank  who  employs  him 
for  that  purpose,  he  is  not  presumed  to  be  a  lawyer  who  is  to 

iBray  ».  Had  wen,  5  M.  &  S.  OS. 

2  Smith  v.  Roach,  7  B.  Mon.  17  ;  American  Life  Ins.  Co.  v.  Emerson,  4  Sm.  & 
M.  177  ;  Carter  v.  Burley,  9  N.  H.  558  ;  Mitchell  v.  Cross,  2  R.  I.  439  ;  Rowe  v. 
Tupper,  13  C.  B.  249  (76  Eng.  C.  R.)  ;  Story  on  Bills,  Sec.  294. 

»  Marston  v.  Bank  of  Mobile,  10  Ala.  284;  Allen  v.  Merchants'  Bank,  22  "Wend. 
215;  Warren  Bank  v.  Parker,  8  Gray,  221. 

*  Bowling  v.  Arthur,  34  Miss.  41;  Com.  Bank  of  Manchester  v.  Agricultural 
Bank,  7  Sm.  &  M.  592;  Dorchester  &  Milton  Bank  v.  New  England  Bank,  1 
Cash.  177. 

6  49  N.  Y.  2G9. 


§  135  NEGOTIABLE   INSTRUMENTS.  135 

revise  or  reverse  the  decision  of  his  employer  as  to  the  character 
of  the  bill,  and  he  cannot  be  held  liable  for  following  his 
instructions. 


136  NOTARIAL   ACTS   AS   EVIDENCE.  §  136 


CHAPTER 

NOTARIAL  ACTS  AS  EVIDENCE. 

§  136.  Judicial  notice  taken  of  notary's  seal. 

§  137.  How  far  notarial  acts  were  evidence  under  common  law. 

§  138.  A  certificate  of  protest  under  the  common  law. 

§  139.  Statutory  provisions  in  regard  to  certificate. 

§  140.  What  facts  the  certificate  is  evidence  of. 

§  141.  Character  of  certificate  as  evidence. 

§  142.  Rebutting  the  certificate. 

§  143.  Notarial  certificate,  when  made  out  of  the  State. 

§  144.  Sufficiency  of  notarial  certificate. 

§  145.  Sufficiency  as  to  residence. 

§  146.  As  to  the  manner  of  giving  notice. 

§  147.  When  notice  is  sent  by  mail. 

§  148.  The  certificate  must  show  notice  of  dishonor. 

§  149.  Need  not  state  at  whose  request  notice  was  given. 

§  150.  Date  of  certificate. 

§  151.  Certificate  should  be  under  notarial  seal. 

§  152.  Presumptions  in  favor  of  certificate.    . 

§  153.  Parol  evidence  affecting  certificate. 

§  154.  Records  of  a  deceased  notary  as  evidence. 

CERTIFICATES   OF  ACKNOWl^EDGMENT. 

§  155.    Character  of  evidence. 

§  156,    When  certificate  may  be  impeached. 

§  157.    Can  be  impeached  for  fraud  or  collusion. 

§  136.  Judicial  notice  is  taken  of  the  seal  of  a  notary 
public,  as  an  officer  recognized  by  the  whole  commercial  world.1 
This  is  stated  by  one  of  our  best  authorities  on  the  law  of  evi- 
dence. It  is  frequently  said,  in  another  manner,  that  the  seal  of 
a  notary  public  proves  itself.  But  what  does  this  mean  ?  How 
far  is  this  true  ?  The  statement  is  somewhat  broad  and  general, 
and  needs  more  exact  and  careful  exposition.  When  we  say 
that  the  seal  of  a  notary  proves  itself,  we  mean  that  no  further 
testimony  is  required  to  be  given  to  the  Court  before  the  judi- 
cial mind  can  recognize  it  as  the  seal  of  a  notary.  Its  very  pro- 
duction is  all  that  is  required,  according  to  the  common  law. 

i  Greenlf .  on  Ev.  Sec.  5. 


§  136          NOTARIAL,  ACTS  AS  EVIDENCE.  137 

Whereas,  in  the  case  of  the  seal  of  some  private  officer  or  per- 
son, it  is  necessary  to  show  that  it  was  the  seal  of  such  'person 
or  officer.  Thus,  suppose  an  instrument  be  offered  with  the 
seal  of  a  corporation  to  it,  necessary  to  give  it  validity.  It  will 
be  necessary  to  prove,  before  the  instrument  can  be  admitted  in 
evidence,  that  the  seal  is  the  proper  seal  of  the  corporation. 
But  when  an  instrument  is  produced  which  is  required  to  have 
a  notarial  seal  to  give  it  validity,  the  seal  affixed  as  that  of  a 
notary  will  be  accepted  without  proof  by  the  Court,  or  without 
any  further  testimony  that  such  is  properly  the  seal  it  purports 
to  be.  A  case  before  Lord  Eldon  well  illustrates  this  particular 
point.  In  Hutcheon  v.  Mannington,1  a  certain  person,  as  a 
magistrate,  joined  with  a  notary  public,  to  certify  that  certain 
writings,  executed  in  a  foreign  country,  were  true  copies.  Lord 
Eldon  observed  that  a  notary  public  by  the  law  of  nations  has 
credit  everywhere,  and  that  he  would  therefore  give  credit  to 
him,  but  that  it  was  necessary  to  prove  that  the  other  person 
was  a  magistrate. 

In  Brown  v.  Philadelphia  Bank,2  Chief  Justice  Tilghman  uses 
this  language  :  "  Public  convenience  requires  that  a  certificate, 
under  a  seal  of  this  kind,  should  be  prima  facie  evidence,  with- 
out proving  that  the  person  who  used  it  and  signed  the  certifi- 
cate was  a  notary  commissioned  by  the  governor.  It  ought  to 
be  presumed,  till  the  contrary  be  proved,  that  no  man  would 
dare  to  assume  the  office  without  proper  authority."  It  must 
be  remembered  that  this  is  a  statement  of  a  rule  of  the  common 
law,  and  in  many  places  may  be  otherwise  by  statute.  But  it 
will  be  found  that  in  all  civilized  countries,  by  the  commercial 
law,  the  seal  of  a  notary,  affixed  to  a  protest  in  a  foreign  State, 
is  accepted  as  authentic,  without  any  other  proof  or  verification.3 

i  G  Yesey,  823. 

2G  S.  &  R.  484.  See  Townsley  v.  Sumrall,  2  Pet.  178;  Story  on  Bills,  Sec.  277; 
Porter  r.  Judson,  1  Gray,  175;  Wright  v.  Barnard;  2  Esp.  700.  The  sealed  pro- 
test of  a  foreign  notary  made  abroad  proves  itself  without  showing  by  whom  it 
was  made,  and  is  evidence  of  the  fact  of  protest.  Lloyd  r.  McGarr,  3  Barr,  474. 

So,  in  Louisiana,  it  is  held  that  protests  of  foreign  bills  by  foreign  notaries  are 
received  in  aid  of  commerce,  to  establish  the  facts  of  presentment,  demand,  and 
non-payment,  and  this  without  proof  of  their  signatures  and  official  capacities. 
Shorr  v.  Woodlief ,  23  La.  An.  473. 

3  In  Donegan  r.  Wood,  49  Ala.  342,  the  Court  refused  to  recognize  as  valid  the 
official  acts  of  a  notary  public  in  making  protest  in  New  Orleans,  in  February, 
18G2,  who  was  appointed  by  the  Confederate  States. 


138  NOTARIAL  ACTS  AS  EVIDENCE.  §  137 

In  regard  to  certain  duties  devolving  on  notaries  by  statute,  as, 
for  instance,  the  taking  of  depositions,  the  same  rule  is  not  uni- 
versal. For  while  in  some  places  the  signature  of  a  notary  and 
his  seal  would  be  accepted  as  authentic,  without  further  proof 
that  he  was  such  in  fact,  in  other  places,  as  will  be  seen  by  a 
reference  to  the  chapter  on  depositions,  it  is  necessary  to  have 
an  authentication  of  his  official  character  from  some  public  of- 
ficer or  Court.  The  practice  on  this  point  varies  throughout 
our  States. 

§  137.  How  far  notarial  acts  were  evidence  under 
common  law. — The  protest  of  a  foreign  bill  of  exchange  by  a 
notary  was  accepted  by  the  common  law  as  proof  of  the  fact  of 
dishonor.  This  rule  was  sanctioned  by  the  mercantile  law  as  one 
of  great  convenience,  obviating  the  necessity  of  calling  witnesses 
from  a  great  distance  to  prove  the  fact  of  dishonor ;  and  the  cer- 
tificate of  the  notary  was  received  in  place  of  the  oral  evidence. 
This  rule  only  had  application  to  foreign  bills.  Whenever  the 
dishonor  of  inland  bills  or  notes  had  to  be  proved,  the  notarial 
protest  alone  would  not  be  received  as  sufficient  evidence — the 
notary  himself,  or  some  other  witness  who  knew  the  facts,  must 
be  called  upon  to  give  evidence.  So,  Story,  J.,  uses  this  lan- 
guage, in  Townsley  v.  Sumrall : l  "  But  where  parties  reside  in 
the  same  kingdom  or  country,  there  is  not  the  same  necessity  for 
giving  entire  verity  and  credit  to  the  notarial  protest.  The 
parties  may  produce  the  witnesses  upon  the  stand,  or  compel  them 
to  give  their  depositions.  And  accordingly,  even  in  cases  of 
foreign  bills,  drawn  upon  and  protested  in  another  country,  if 
the  protest  has  been  made  in  the  country  where  the  suit  is 
brought,  Courts  of  Justice,  sitting  under  the  common  law,  require 
that  the  notary  himself  should  be  produced,  if  within  the  reach  of 
process,  and  his  certificate  is  not  per  se  evidence.  This  was  so 
held  by  Lord  Ellenborough  in  Chesmer  v.  Noyes."2  Story,  in 
this  case,  held  that  the  United  States  were  foreign  to  one  another 
in  respect  to  bills  of  exchange.3  Under  the  common  law,  the 

1 2  Pet.  179. 
2  2  Camp.  129. 

8  In  Holliday  v.  McDougall,  20  "Wend.. 81,  the  same  point  is  decided  by  Cowen, 
J.,  who  cites  Townsley  v.  Sumrall,  Supra;  Cape  Fear  Bank  v.  Steinmetz,  1  Hill, 


§  138  NOTARIAL   ACTS   AS   EVIDENCE.  139 

protest  was  only  evidence  as  to  presentment  and  dishonor ;  and 
no  statement  contained  therein,  as  to  notice  given  an  iridorser, 
would  be  accepted  as  evidence  of  notice  to  the  indorser.1 

§  138.  A  certificate  of  protest  under  the  common  law 

is  evidence  of  a  demand  and  refusal,  but  no  more.  Hence,  in 
an  action  upon  a  foreign  bill,  the  protest  is  competent  evidence 
to  prove  presentment  of  the  bill  to  the  acceptor,  and  non-pay- 
ment.2 But  a  notarial  protest  which  states  merely  that  the 
notary  "  presented  the  same  at  the  office  of  A  &  B,"  the  makers, 
4i  and  was  refused  payment,"  is  not  sufficient,  and  it  is  not  ad- 
missible in  evidence  in  an  action  against  an  indorser.3  The 
Court,  in  this  case,  say :  "  The  matter  to  be  proved  was,  that 
the  note  had  been  duly  protested  for  non-payment,  that  is,  the 
dishonor  of  the  note.  This  main  fact  would  consist  of  three 
elements :  a  presentment  to  the  makers  for  payment,  a  demand 
of  payment,  and  a  refusal  of  payment ;  all  of  which  the  notarial 
protest  must  show,  otherwise  it  will  contain  no  evidence  which 
is  competent  to  go  to  the  jury  on  the  main  fact  to  be  proved. 

In  Bank  of  Eochester  v.  Gray,4  it  is  held  that  the  admission 
of  a  notarial  certificate  of  protest,  as  evidence,  depends  on  the 
lex  fori,  and  it  is  not  admissible  by  itself  unless  it  be  sealed ; 
and  it  is  there  also  held  that,  as  it  is  no  part  of  the  common-law 
duty  of  a  notary  to  give  notice,  the  certificate  of  a  foreign 
notary  is  no  evidence  that  he  did  so. 

Sometimes  the  record  of  a  deceased  notary  has  been  received 
as  secondary  evidence,  to  show  the  fact  of  notice  having  been 
given  when  his  certificate,  if  he  were  living,  would  not  be  com- 

44;  Nicholls  v.  Webb,  8  Wheat.  331.  See,  further,  Chitty  on  Bills,  362;  Kirksey 
v.  Bates,  7  Porter,  529;  Hatfield  v.  Perry,  4  Harr.  (Del.)  463;  Bond  v.  Bragg,  17 
HI.  G9;  Carter  v.  Burley,  9  N.  H.  558. 

1  Rives  t>.  Parmley,  18  Ala.  256;  Coster  v.  Thomason,  19  Id.  721;  Sullivan  v. 
Deadman,  19  Ark.  484;  Union  Bank  v.  Humphreys,  48  Me.  172;  Schoneman  v. 
Fegley,  7  Penn.  St.  433;  Coleman  v.  Smith,  26  Id.  255. 

2  Musson  v.  Lake,  4  How.  (U.  S.)  273;  Green  v.  Jackson,  15  Me.  136;  Warren  v. 
Warren,  16  Id.  259;  Pattee  v.  Crillis,  53  Id.  410;  Moore  v.  Missouri  Bank,  6  Mo. 
379;  Grafton  Bank  v.  Moore,  14  N.  H.  142;  Estep  v.  Cecil,  6  Ohio  St.  536;  Wil- 
liams v.  Turner,  2  Bay  (S.  C.)  411;  Bryden  v.  Taylor,  2  Har.  &  J.  399;  Brittain  v. 
Bank,  5  Watts  &  S.  87. 

s  Nave  v.  Richardson,  36  Mo.  130;  S.  P.  Otsego  Co.  Bank  v.  Warren,  18  Barb. 
290. 
*  2  Hill,  227.    See  Ross  v.  Bedell,  5  Duer,  462. 


140  NOTARIAL  ACTS  AS  EVIDENCE.          §  139 

petent  to  prove  this  fact.  Thus,  Story,  J.,  says,  in  Nicholls  v. 
Webb,1  of  an  entry  made  in  the  register  of  a  deceased  notary, 
in  regard  to  the  protest  of  a  promissory  note,  which  did  not  re- 
quire a  protest  according  to  the  law  merchant :  "  We  think  it  a 
safe  principle  that  memorandums  made  by  a  person  in  the  ordi- 
nary course  of  his  business,  of  acts  or  matters  which  his  duty 
in  such  business  requires  him  to  do  for  others,  in  case  of  his 
death,  are  admissible  evidence  of  the  acts  and  matters  so  done." 
"  A  fortiori,  we  think  the  acts  of  a  public  officer,  like  a  notary 
public,  admissible,  although  they  may  not  be  strictly  official,  if 
they  are  according  to  the  customary  business  of  his  office,  since 
he  acts  as  a  sworn  officer,  and  is  clothed  with  public  authority 
and  consequence."  So,  on  this  principle,  it  was  decided,  in 
Massachusetts,  in  Porter  -y.  Judson,2  that  the  protest  of  a  promis- 
sory note,  duly  authenticated  by  the  signature  and  official  seal 
of  a  notary  public,  and  found  among  his  papers  after  his  death, 
is  competent  secondary  evidence  of  the  acts  of  the  notary,  stated 
therein,  respecting  presentment,  demand,  and  refusal.3 

§  139.  Statutory  provisions  in  regard  to  certificate. — 

In  nearly  all  of  our  States  there  have  been  enacted  statutes 
giving  greater  credit  and  force  to  a  notarial  certificate  in  regard 
to  the  protest  of  negotiable  paper.  While,  under  the  common 
law,  a  protest  was  only  necessary  in  the  case  of  foreign  bills, 
and  was  only  received  as  evidence  in  actions  upon  such,  now, 
under  statutory  provisions,  protests  may  be  made  of  inland  bills 
and  promissory  notes,,  and  the  certificate  of  the  notary  as  to  such 
protest,  and  the  notice  given,  is  accepted  as  prima  facie  evidence 
of  such  facts,  without  the  necessity  of  calling  the  notary  as  a 
witness.  This  has  been  done  in  aid  of  mercantile  usage  and 

18  Wheat.  326. 

2 1  Gray,  175.  In  Hart  v.  "Wilson,  2  Wend.  513,  a  memorandum  of  protest  on 
the  back  of  a  note  by  a  deceased  notary  was  admitted  in  evidence. 

8  The  same  has  been  held,  in  England,  in  Poole  t;.  Decas,  1  Bing.  649,  Chief 
Justice  Tindal  holding  :  "  We  think  it  admissible,  on  the  ground  that  it  was  an 
entry  made  at  the  time  of  the  transaction,  and  made  in  the  usual  course  and 
routine  of  business  by  a  person  who  had  no  interest  to  misstate  what  had  oc- 
curred." The  admission  of  records  of  deceased  notaries,  under  statutory  pro- 
visiona,  will  be  considered  in  a  subsequent  section. 


§  139  NOTARIAL    ACTS    AS    EVIDENCE.  141 

convenience,  though  some  of  our  States  still  adhere  to  the  com- 
mon-law  rules,  previously  stated.1 

In  Kansas,  the  statute  provides :  "  A  notarial  protest  shall  be 
evidence  of  a  demand  and  refusal  to  pay  a  bond,  promissory 
note,  or  bill  of  exchange,  at  the  time  and  in  the  manner  stated  in 
such  protest,  until  the  contrary  is  shown." 2  This,  it  will  be 
seen,  somewhat  enlarges  the  field  of  the  protest,  extending  it  to 
inland  bills,  bonds,  and  to  promissory  notes,  but  nothing  is  said 
about  it  being  evidence  of  the  fact  of  notice  if  recited  in  the 
protest.  This  point  came  under  examination  in  a  late  case  in 
that  State  where  a  promissory  note  had  been  protested  for  non- 
payment, and  a  statement  was  made  in  the  protest  that  due 
notice  was  given  to  the  indorser,  setting  forth  how  given.  The 
Court  decided  that  under  the  statute  this  certificate  could  not 
be  received  as  evidence  of  such  notice.3 

The  language  of  the  Missouri  statute  is  almost  the  same.  It 
says  :  "  A  notarial  protest  is  evidence  of  a  demand  and  refusal 
to  pay  a  bill  of  exchange  or  negotiable  promissory  note,  at  the 
time  and  in  the  manner  stated  in  such  protest."  4  And  it  would 
follow  that,  under  the  construction  given  to  the  Kansas  statute,  a 
recital  of  notice  having  been  given  would  not  be  received  as 
competent  evidence  by  the  certificate  of  the  notary. 

lThe  following  States  still  adopt  the  common-law  rule  as  to  notice  :  Delaware, 
Florida,  Kansas,  Massachusetts,  Missouri,  and  Rhode  Island.  In  Mississippi, 
since  Act  of  April  5th,  1872,  the  protest  is  required  to  state  whether  demand 
was  made,  of  whom,  when,  and  where,  whether  the  notary  presented  such  bill 
or  note,  whether  notices  were  given,  to  whom  and  in  what  manner,  .where  the 
same  was  mailed,  and  when  and  to  whom  directed,  and  every  other  fact  touch- 
ing the  same.  Sec.  9.  In  New  Jersy,  since  1862,  (Nixon's  Dig.  p.  773)  the  cer- 
tificate of  a  notary,  as  to  protest  and  notice,  shall  be  received  as  prima  facie 
evidence,  but  a  party  may  contradict  it  by  appending  notice  to  his  plea. 

In  Pennsylvania,  it  is  provided  (Purdon's  Dig.  p.  759)  "that  the  official  acts, 
protests,  and  attestations  of  all  notaries  public,  certified  according  to  law,  un- 
der their  respective  hands  and  seals  of  office,  in  respect  to  the  dishonor  of  all 
bills  and  promissory  notes,  and  of  office  to  the  drawers,  acceptors,  or  indorsers 
thereof,  may  be  received  and  read  in  evidence  as  proof  of  the  facts  therein 
stated  iu  all  suits  pending,  or  hereafter  to  be  brought  :  prodded,  that  any  party 
may  be  permitted  to  contradict  by  other  evidence  any  such  certificate."  In 
Jenks  v.  Doylestown  Bank,  4  Watts  &  S.  505,  it  was  held  that  the  notary's  pro- 
test of  a  promissory  note  is  prima  facie  evidence  of  the  fact  of  notice  when  re- 
cited in  it. 

2  Gen.  Stat.  117,  Sec.  18. 

8  Curtis  v.  Buckley,  14  Kan.  450. 

4  1  Wag.  Stat.  218,  Sec.  20. 


142  NOTAKIAL   ACTS   AS   EVIDENCE.  §  140 

§  140.  What  facts  the   certificate  is  evidence  of. — It 

must  be  understood  that  the  notary's  certificate  is  not  evidence 
of  every  fact  he  may  choose  to  state  in  it.  It  is  manifest  that 
he  might  state  many  irrelevant  matters  which  cannot  have  any 
connection  whatever  with  the  duty  he  is  called  upon  to  dis- 
charge ;  which  could  not  therefore  be  received  in  evidence 
under  his  certificate.  And  it  must  be  borne  in  mind  that 
evidence  offered  in  -  this  manner,  without  cross-examination, 
ex  parte  as  it  were,  is  an  innovation  on  the  rules  of  the  common 
law,  and  therefore  the  certificate  can  only  be  received  as 
evidence  to  those  facts  which  the  statute  provides.  The 
Courts  are  therefore  strict  in  confining  the  certificate  of  the 
notary  to  the  precise  facts  required  by  the  statute,  and  no  more, 
nor  no  less.  So,  when  the  protest  of  a  notary  public  stated  that 
notice  was  given  "  to  the  agent "  of  a  party  of  the  protest  of  his 
paper,  this  is  not  sufficient  evidence  of  such  agency :  the 
agency  must  be  proved  aliunde  before  the  protest  can  be  re- 
ceived as  evidence  of  notice.1  And  a  statement,  in  a  protest 
of  a  bill  for  non-acceptance,  that  the  reason  given  by  the  drawee 
for  non-acceptance  was  that  he  had  no  effects  of  the  drawer,  is 
no  evidence  of  the  want  of  effects.2  Where  a  certificate  states 
that  the  notice  was  mailed  to  the  indorser's  address  at  a  certain 
place,  it  will  not  be  presumed  that  the  indorser  resided  in  that 
place.3  So  a  certificate  of  the  notary  that,  according  to  his  best 
information,  upon  diligent  inquiry,  the  indorser  lived  in  New 
York,  and  that  he  mailed  a  notice  to  him  in  that  city,  is  of  no 
effect  to  prove  a  proper  notice  upon  proof  that  when  the 
plaintiff  took  the  note  he  was  informed  that  the  indorser  lived 
on  Long  Island,  where  in  fact  he  had  lived  for  twenty  years.4 
If  a  notary  certifies  that  what  he  did  was  done  at  the  request 
of  a  particular  bank,  it  is  of  no  importance ;  for  it  may  be 
fairly  inferred  that  he  received  the  bill  from  that  bank,  and 
that  they,  having  possession  of  it,  were  duly  authorized  to  em- 
ploy the  attorney.5 

lO'Connell  v.  "Walker,   1  Porter,  263;  Castles  v.  McMath,  1  Ala.  326;  S.  P. 
Drumm  v.  Bradfute,  18  La.  An.  C80. 

2  Dumont  v.  Pope,  7  Blackf.  367;  Dakin  v.  Graves,  48  N".  H.  45. 
8  Bradshaw »;.  Hedge,  10  Iowa,  402. 
4  Randall  v.  Smith,  34  Barb.  452. 
CBurbank  v.  Beach,  15  Barb.  326.    In  Bennett  v.  Young,  ISPenn.  St.  261,  a 


§  141  NOTARIAL   ACTS   AS   EVIDENCE.  143 

The  Civil  Code  of  California  gives  a  great  deal  of  scope  to  the 
notarial  protest.  It '  provides,  Sec.  3227,  that  it  shalj  state 
"  presentment,  and  the  manner  in  which  it  was  made ;  the  presence 
or  absence  of  the  drawee  or  acceptor,  as  the  case  may  be  ;  the 
refusal  to  accept  or  to  pay,  or  the  inability  of  the  drawee  to 
give  a  binding  acceptance  ;  and,  in  case  of  refusal,  the  reason 
assigned,  if  any  ;  and,  finally,  protest  against  all  the  parties  to 
be  charged." 

§  141.  Character  of  certificate  as  evidence. — The  stat- 
utes of  our  States  give  to  a  notary's  certificate  of  the  protest  of 
commercial  paper,  and  the  notice  served,  the  character  of  pre- 
sumptive or  prima  facie  evidence  of  the  facts  of  such  protest 
and  notice.1  Some  of  the  statutes  provide  unnecessarily  that 
such  evidence  may  be  contradicted  ;  but  of  course,  from  the  na- 
ture of  the  evidence,  this  must  be  assumed.2  Thus,  in  an  action 
on  a  promissory  note  against  an  indorser,  the  protest  and  certifi- 
cate of  notice  of  protest  are  admissible  in  evidence,  although 
no  protest  or  notice  of  protest  is  alleged  in  the  petition.  The 
protest  and  certificate  of  notice  of  protest  are  proper  evidence 
under  allegations  showing  demand  and  refusal  of  payment,  and 
that  the  defendant  had  due  notice.3  The  certificate  is  evidence, 
although  the  notary  has  forgotten  the  facts  contained  in  the  cer- 
tificate.4 

The  credit  given  to  the  notary's  certificate,  under  the  statutes, 

notary  certified  that  ho  had  "made  diligent  search  and  inquiry"  for  the  draw- 
ers. The  Court  disapproved  of  this  mode  of  stating  the  facts,  it  being  in  the 
nature  of  a  conclusion  rather  than  any  clear  statement  of  what  he  had  actually 
done. 

1  Prima  facie  evidence  is  defined  to  be,  in  law,  that  which  is  sufficient  to  estab- 
lish a  fact,  unless  rebutted :  Bouvier's  Law  Dictionary.    The  Code  of  Procedure 
of  California,  Sec.  1833,  defines  it  to  be,  that  which  suffices  for  the  proof  of  a 
particular  fact,  until  contradicted  and  overcome  by  other  evidence. 

2  Booker  v.  Lowry,  2  Ala.  399;  Rives  v.  Parmeley,  18  Id.  256;  McFarland  v. 
Pico,  8  Cal.  627;  Dickerson  v.  Turner,  12  Ind.  223;  Sather  v.  Rogers,  12  Iowa, 
231;  Barker  r.  Fullerton,  11  La.  An.  25;  Nailor  v.  Bowie,  3  Md.  251;  Kern  v. 
Von  Phul,  7  Minn.  426;  Simpson  v.  White,  40  N.  H.  540;  Gawtry  v.  Boane,  48 
Barb.  148;  Gordon  v.  Price,  10  Ired.  385 ;  Baumgardner  v.  Reeves,  35  Penn.  St.  250; 
Worley  v.  Waldran,  3  Sneed,  548;  Nelson  v.  Fotherall,  7  Leigh,  179;  Central 
Bank  v.  St.  Johns,  17  Wis.  157;  Span  v.  Baltzall,  1  Fla.  301;  Field  r.  Thornton,  1 
Ga.  306;  Sims  v.  Handley,  1  How.  (Miss.)  1;  Smith  v.  McMannis,  7  Yerg.  483. 

8  Bank  of  Kentucky  v.  Goodale,  20  La.  An.  50. 
4  Sherer  v.  Easton  Bank,  33  Penn.  St.  134. 


144  NOTARIAL  ACTS  AS  EVIDENCE.          §  141 

is  well  stated,  and  the  departure  from  the  former  practice  shown 
in  Layman  v.  Brown,1  in  Ohio.  There  the  Court  say :  "  The 
object  of  this  provision  undoubtedly  was  to  make  the  officer's 
certificate  of  all  his  official  acts,  performed  at  the  time  of  the 
protest,  evidence  in  any  action  upon  the  bill  or  note  protested. 
Prior  to  the  statute,  the  act  of  a  notary  in  the  presentment  of 
a  note,  and  giving  notice  to  the  indorser,  was  x>f  no  more  validity 
than  that  of  a  private  person.  It  was  subject  to  the  same  rule 
of  construction,  and  must  have  been  proved  in  the  same  manner. 
The  rule  was  so  strictly  applied  that  the  notarial  fee  could  not 
be  charged  against  the  debtor ;  and  although  the  practice  pre- 
vailed in  all  the  commercial  cities  of  the  Union  to  employ  a 
notary  to  present  dishonored  notes,  and  to  notify  the  indorsers  if 
payment  should  be  refused,  it  was  never  decreed  that  the  prac- 
tice changed  the  general  rule  of  law — it  was  simply  an  arrange- 
ment made  for  the  convenience  of  the  holder,  and  principally 
resorted  to  when  the  note  was  held  by  a  bank,  by  which,  in 
effect,  the  notary  was  substituted  for  an  agent  of  the  holder. 
Such  was  the  law,  as  held  by  the  Courts  of  all  the  States,  as 
well  as  those  of  England.  The  admission  of  the  protest  as  tes- 
timony was  confined  solely  to  bills  of  exchange,  and  then  merely 
to  entitle  the  holder  to  recover  damages.  And  yet,  in  Scotland, 
as  well  as  in  all  Continental  Europe,  there  was  no  distinction 
made  between  bills  and  notes — the  act  of  the  notary  was  held 
to  be  good  evidence  of  the  facts  necessary  to  be  proved  in  both 
cases.' 


"2 


1 1  Disney,  75. 

2  Story  on  Prom.  Notes,  Sees.  274,  279,  297  ;  Nicbolls  v.  Webb,  8  Wheat.  326. 

The  provisions  in  our  statutes  which  admit  the  certificate  of  a  notary  as  evi- 
dence are  very  similar  throughout.  Thus,  in  California,  Political  Code,  Sec.  7'J5  : 
"The  protest  of  a  notary,  under  his  hand  and  official  seal,  of  a  bill  of  exchange  or 
promissory  note,  for  non-acceptance  or  non-payment,  stating  the  presentment 
for  acceptance  or  payment,  and  the  non-acceptance  or  non-payment  thereof,  the 
service  of  notice  on  any  or  all  of  the  parties  to  such  bill  of  exchange  or  prom- 
issory note,  and  specifying  the  mode  of  giving  such  notice,  and  the  reputed 
place  of  residence  of  the  party  to  such  bill  of  exchange  or  promissory  note,  aud 
of  the  party  to  whom  the  same  was  given,  and  the  post>-office  nearest  thereto,  is 
prima  facie  evidence  of  the  facts  contained  therein."  The  provision  in  New 
York  is  :  "Any  note  or  memorandum  made  by  a  notary  public,  in  his  own 
handwriting,  or  signed  by  him  at  the  foot  of  any  protest,  or  in  his  regular  reg- 
ister'of  official  acts,  is  presumptive  evidence  of  the  fact  of  any  notice  of  non- 
acceptance  or  non-payment  having  been  sent  or  delivered  at  the  time  and  in 
the  manner  stated  in  such  note  or  memorandum."  2  R.  S.  284,  Sec.  47.  In  Mis- 


§  142  NOTARIAL   ACTS    AS   EVIDENCE.  145 

§  142.  Rebutting  the  certificate. — Some  States  provide  a 
specific  mode  for  a  rebuttal  of  the  certificate  as  evidence,  and 
then  the  party  offering  it  is  obliged  to  prove  the  facts,  as  he 
would  have  to  do  under  the  common  law.  The  statute  of  New 
York,  passed  in  1833,  enacted :  "  In  all  actions  at  law,  the  certifi- 
cate of  a  notary,  under  seal  of  office,  of  the  presentment  of  any 
note  or  bill  for  acceptance,  or  of  any  protest  of  such  note  or  bill, 
and  of  the  service  of  notice  thereof  on  any  or  all  of  the  parties, 
specifying  the  mode  of  giving  such  notice,  and  the  reputed 
place  of  residence  of  the  party  to  whom  the  same  was  given, 
and  the  post-office  nearest  thereto,  to  be  presumptive  evidence  of 
the  facts  contained  in  such  certificate :  but  not  when  the  de- 
fendant shall  annex  to  his  plea  an  affidavit,  denying  having  re- 
ceived notice  of  non-acceptance  or  of  non-payment  of  such  note 
or  bill."  l  The  Michigan  statute  is  somewhat  similar,  reading : 
"  In  all  the  Courts  of  this  State,  the  certificate  of  a  notary  pub- 
lic, under  his  hand  and  seal  of  office,  of  official  acts  done  by 
him  as  such  notary,  shall  be  received  as  presumptive  evidence 
of  the  facts  contained  in  such  certificate ;  but  such  certificate 

sissippi,  the  certificate  is  not  evidence  without  the  affidavit  of  the  notary.  By 
the  Act  of  April  5th,  1872,  it  is  provided  :  "That  the  record  of  the  notary  pro- 
testing any  bill,  or  note,  or  other  instrument,  or  a  copy  thereof,  verified  by  the  affi- 
davit of  such  notary,  taken  before  a  justice  of  the  peace,  shall  be  conclusive 
evidence  of  the  fact  of  the  protest,  and  prima  facie  evidence  of  all  other  facts 
touching  the  dishonor  of  the  said  bill  or  note  ;  such  copy  shall  be  competent 
evidence  in  all  the  Courts  of  this  State,  including  the  Courts  of  the  county  in 
•which  the  notary  protesting  the  bill  or  note  resides."  The  certificate  is  not  evi- 
dence unless  verified  by  oath:  Dorsey  v.  Merritt,  7  Miss.  390  ;.  but  the  oath  need 
not  be  made  at  the  time  of  making  up  the  record.  Fleming  v.  Fulton,  7  Miss. 
473. 

i  Laws  1833,  p.  304,  Chap.  271,  Sec.  8. 

Under  this,  it  was  held  that  a  notarial  certificate  of  protest,  and  notice  is 
competent  evidence,  notwithstanding  a  denial  of  notice  of  protest  in  a  verified 
answer.  Such  verification  cannot  be  received  as  a  substitute  for  the  affidavit 
required  by  the  statute.  Arnold  v.  Rock,  5  Duer,  207  ;  Gawtry  v.  Doane,  48 
Barb.  148  ;  Lansing  v.  Coley,  13  Abb.  Pr.  272.  An  affidavit  denying  "knowl- 
edge, recollection,  or  belief"  of  having  received  notice  of  protest,  is  sufficient 
to  exclude  the  notarial  certificate.  Barker  v.  Cassidy,  16  Barb.  177.  See  Pier- 
son  v.  Boyd,  2  Duer,  33.  This  Act  of  1833  lias  no  application  to  the  case  of  a 
certificate  of  a  notary  of  this  State  to  the  presentment  of  a  note  drawn  payable 
at  a  place  in  another  State.  Dutchess  Co.  Bank  v.  Tbbotson,  5  Den.  110 ;  Kirt- 
land  v.  "Wanzer,  2  Duer,  278.  It  applies  only  to  notaries  of  the  State.  Bank  of 
Rochester  v.  Gray,  2  Hill,  227.  The  defendant  may  contradict  the  presumption 
arising  from  the  certificate,  by  showing  that  it  is  untrue.  Seneca  Co.  Bank  v. 
Neass,  3  N.  Y.  442. 

NOTARIES — 10. 


146  NOTARIAL    ACTS    AS    EVIDENCE.  §  143 

shall  not  be  evidence  of  notice  of  non-acceptance  or  non-pay- 
ment in  any  case  in  which  a  defendant  shall  annex  to  his  plea 
an  affidavit,  denying  the  fact  of  having  received  such  notice." l 

§  143.   Notarial  certificate,  when  made  out  of  State. — 

It  has  been  held  that  the  statutes  giving  to  the  notarial  certifi- 
cate the  character  of  prima  facie  evidence  of  the  protest  and 
notice  of  protest  have  no  application  to  the  certificates  made 
out  of  the  State ;  and  such  certificates,  given  by  notaries  in 
other  States,  can  only  be  admitted  in  evidence  under  enabling 
statutes,  which  are  now  found  in  many  of  our  States.2  Thus, 
under  the  Pennsylvania  Act  of  1854,  the  certificate  of  a  notary 
in  another  State  of  the  non-payment  of  a  bill  or  note  is  admissi- 
ble in  evidence  in  an  action  upon  it,  and  it  is  not  necessary  that 
the  certificate  should  appear  to  have  been  a  transcript  from 
some  record  or  register  of  what  took  place  at  the  time  of  send- 
ing notice.3  So  in  Connecticut,  under  the  statute  making  pro- 
tests of  promissory  notes  protested  without  the  State  prima 
facie  evidence  of  the  facts  therein  contained,  such  a  protest,  in 
which  the  magistrate  has  certified  that  on  the  day  of  the  protest 
a  due  notice  thereof  was  put  into  the  post-office,  directed  to  the 
indorser  at  his  place  of  residence,  is  admissible  as  evidence  that 
such  notice  was  sent.4  And  it  has  been  held,  in  Indiana,  that  an 
instrument  of  writing  purporting  to  be  a  protest  of  a  note  with 
a  certificate  of  notice  to  the  indorser,  by  a  notary  public  in 
New  York,  is  admissible  evidence  for  the  plaintiff,  in  a  suit  on 
said  note,  under  the  statute,  without  proof  of  its  execution.5 

In  a  late  case  in  New  York,  the  Court  had  under  considera- 
tion the  requisites  of  such  a  certificate  from  another  State. 
Under  the  law  of  New  York  of  1865,6  it  was  enacted  that  pre- 
sentment of  notes  and  notice  of  protest  may  be  made  "  accord- 
ing to  the  laws  of  such  other  State,  etc.  And  in  any  action  in 
any  of  the  Courts  of  this  State,  such  proof  of  such  presentment 

1  Comp.  Laws,  p.  202,  Sec.  G03. 

2  White  v.  Englehard,  10  Miss.  38;  Dutcbess  Co.  Bank  v.  Ibbotson,  5  Den.  110; 
Schoneman  v.  Fegley,  7  Penn.  St.  433;  Coleman  v.  Smith,  26  Id.  255;  Sumnerr. 
Bowen,  2  Wis.  524. 

»  Starr  v.  Sanford,  45  Penn.  St.  193. 

4  Union  Bank  v.  Middlebrook,  33  Conn.  95. 

6Shanklin  v.  Cooper,  8  Blackf.  41;  S;  P.  Turner  v.  Rogers,  8  Ind.  139. 

6  Laws  of  1865.  Chap.  309. 


§§  144-5  NOTARIAL    ACTS    AS    EVIDENCE.  147 

and  notice  thereof  may  be  made  as  is  authorized  and  required 
by  such  laws.  And  on  such  proof  being  made,  the  note  shall 
be  deemed  to  have  been  duly  and  sufficiently  presented  and 
protested,  and  notice  of  all  thereof  duly  given." 

The  certificate  of  a  notary  of  Pennsylvania,  -wherein  he  cer- 
tified that  he  had  made  due  presentment,  etc.,  and  made  protest, 
stating  "  of  all  of  which  I  duly  notified  the  indorsers,"  was  in- 
troduced in  evidence.  The  Court  decided  that  this  certificate 
was  incomplete,  and  could  not  be  admitted  under  the  above 
statute  to  prove  due  notice  to  the  indorsers ;  for  the  reason  that 
there  was  no  evidence  offered  that  this  certificate  would  be  suf- 
ficient under  the  laws  of  Pennsylvania,  and,  in  the  absence  of 
such  evidence,  the  certificate  must  state  definitely  how  and  in 
what  manner  notice  was  given,  either  that  it  was  personal,  ac- 
cording to  the  common  law,  or  by  mail,  according  to  statute.1 
The  Court  say,  in  giving  the  decision :  "  The  act  allows  pre- 
sentment and  notice  to  be  made  and  given  according  to  the  laws 
of  such  other  State,  and  proof  thereof  to  be  made  as  is  author- 
ized and  required  by  such  laws.  On  such  proof,  i.  e.,  that  the 
presentment  and  notice  was  according  to  the  laws  of  such  State, 
being  made,  it  shall  be  held  to  have  been  duly  done,  and  such 
certificate  would  be  enough." 

§  144.  Sufficiency  of  the  notarial  certificate. — A  protest 
of  a  notary  is  prima  facie  evidence  of  the  truth  of  its  state- 
ments, and  when  exclusively  relied  on  to  prove  the  necessary 
facts,  must  contain  sufficient  averments  that  everything  requisite 
has  been  done  to  authorize  the  demand  upon  the  indorser.2  The 
inquiry  will  now  be  made  as  to  what  requisite  averments  the 
certificate  must  contain,  so  as  to  hold  an  indorser  liable  when 
the  certificate  is  offered  to  prove  notice  of  protest. 

§  145.  Sufficiency  as  to  residence. — As  the  statutes  give 
to  the  certificate  the  character  of  prima  facie  evidence  of  the 
facts  therein  stated,  it  would  follow  that  a  statement  by  the 

1  Lawson  v.  Pinckney,  40  JS".  Y.  Superior  Ct.  187.    Decided,  Dec.  1875. 

-  People's  Bank  r.  Brooke,  31  Md.  7.  The  protest  of  a  notary  public  is  admis- 
sible in  evidence,  however  insufficiently  or  defectively  the  facts  may  be  stated 
•with  respect  to  demand  and  notice.  The  question  of  the  sufficiency  arises  af- 
terward. Hastings  v.  Barrington,  4  Whart.  486. 


148  NOTARIAL   ACTS   AS   EVIDENCE.  §  145 

notary  that  he  had  given  notice  to  an  indorser  at  a  certain  place 
is  prima  facie  evidence  that  that  is  his  residence.  The  burden 
will  be  upon  the  indorser,  when  sued,  to  show  that  it  was  not  his 
residence  or  post-office  address.1  In  a  late  case  in  Iowa,  Fuller 
v.  Dingman,2  the  notary's  certificate  was  as  follows :  "  Be  it 
known,  that  on  the  date  hereof,  I,  W.  S.  Kenworthy,  notary 
public  for  the  County  of  Mahaska,  State  of  Iowa,  duly  com- 
missioned and  qualified,  residing  in  the  city  of  Oskaloosa,  in 
said  State,  at  the  request  of  Lindley,  cashier,  the  holder  of  the 
original  note,  which  is  hereunto  attached,  presented  the  same  and 
demanded  payment  thereon,  which  was  refused.  Whereupon,  I, 
the  said  notary,  at  the  request  aforesaid,  have  protested,  and  do 
protest,  against  the  maker  and  indorsers  of  said  note. 
And  I  do  certify  that,  on  the  day  of  the  date  of  this  protest,  I 
notified  the  maker  and  indorsers  of  the  hereunto  attached  note, 
to  wit :  Lawrence  Dingman,  in  person,  and  Craig  &  Alexan- 
der, Fuller  &  Warren,  and  H.  E.  Lowe,  cashier,  of  the  within 
protest,  and  which  I,  on  the  said  day,  mailed  to  them,  the  said 
Craig  &  Alexander,  and  H.  E.  Lowe,  assistant  cashier.  The 
first  addressed,  Oskaloosa,  Iowa,  and  Fuller  &  Warren,  and  H. 
E.  Lowe,  Chicago,  Illinois,  and  to  Lawrence  Dingman,  Oska- 
loosa, Iowa.  In  testimony  whereof,"  etc.  It  was  held  that  this 
was  sufficient  as  evidence  that  the  places  named  were  the  respect- 
ive residences  of  the  parties. 

In  some  States — in  fact,  as  a  general  rule — it  is  required  that 
when  certificates  are  sent  by  mail  it  shall  be  stated  where  the 
notices  were  sent.3  But  in  New  York,  since  the  law  of  1835, 
the  certificate  need  not  specify  the  party's  reputed  place  of 
residence,  and  the  post-office  nearest  to  it.4  In  a  case  in  In- 
diana, it  is  held  that  where  a  notary  states  in  the  protest  that 
he  notified  the  indorsers  by  addressing  notices  to  them  at  a 
place  named,  proof  is  requisite  that  they  resided  at  that  place.5 
This  is  not  in  agreement  with  other  authorities. 

1  "Walmsley  v.  Rivera,  34  Iowa,  463;  Bell  v.  Lent,  24  "Wend.  230;  Bell  v.  Hagers- 
town  Bank,  7  Gill.  216;  Bank  of  Columbia  v.  McGruder,  G  H.  &  J.  172. 

2  41  Iowa,  506. 

8  Curry  v.  Bank  of  Mobile,  8  Port.  360. 

4Ketchum  v.  Barber,  4  Hill,  224.    So  in  Georgia.   "Walker  v.  Bank  of  Augusta, 
3  Ga.  486. 
6  Turner  v.  Rogers,  8  Ind.  139;  S.  P.  Bank  of  Mobile  v.  King,  9  Ala.  279. 


§  146  NOTARIAL    ACTS    AS   EVIDENCE.  149 

§  146.  As  to  the  manner  of  giving  notice. — When  no 
mode  of  giving  the  notice  is  stated  in  the  notarial  certificate,  it 
is  deemed  to  be  personal.  Thus,  in  Ticonic  Bank  v.  Stackpole,1 
the  notary  merely  certified  :  "  And  on  the  same  day  I  duly  no- 
tified James  Stackpole,  Esq.,  indorser  of  said  note,  of  said  non- 
payment." It  was  objected,  in  this  case,  that  this  certificate  was 
insufficient,  as  it  was  a  mere  conclusion  by  the  notary  as  to 
what  "  due  "  notice  was.  The  Court  held  the  certificate  suffi- 
cient as  evidence  of  notice,  saying :  "  In  the  absence  of  any 
qualification,  it  must  be  regarded  as  verbal,  and  that,  as  the  de- 
fendant is  a  resident  of  the  town  where  the  note  is  payable,  is 
sufficient.  But  it  is  seldom  a  notarial  certificate  is  given  in  this 
manner ;  the  usual  and  the  proper  course  is  to  indicate  what 
means  were  taken  to  notify  the  indorser,  whether  it  was  by  a 
written  notice  handed  to  him,  or  mailed  to  him,  as  the  statute 
requires." 

So,  a  notary's  certificate  that  he  "  gave  written  notice  to  the 
indorser  "  is  equivalent  to  "  put  a  written  notice  in  the  indorser's 
hands,"  and  is  therefore  good.2  Where  a  notary,  in  his  certifi- 
cate of  protest,  stated  that  he  had  delivered  a  written  notice  of 
protest  "  to  C,  and  left  the  same  at  his  office,"  it  was  held  that 
C  might  show  that,  at  the  time  the  notice  was  given,  he  had  no 
office  at  the  place  mentioned,  and  thereby  rebut  the  presumption 
of  the  correctness  of  the  fact  stated  by  the  notary.3 

In  Union  Bank  v.  Humphreys,4  the  certificate  stated  merely 
that  the  notary  "  made  notices  to  all  the  indorsers,  which  he 
caused  to  be  left  at  their  dwelling-houses."  It  was  held  that  the 
certificate  could  not  be  received  as  evidence.  The  Court  say : 
"  What  the  notices  contained,  and  whether  sufficient  or  not  to 
charge  an  indorser,  is  left  entirely  to  conjecture.  The  plaintiffs 
neither  asked  for  leave  for  the  notary  to  amend  his  protest,  nor 
offered  to  prove  that  the  notices  sent  contained  the  proof  of  the 

1  41  Me.  321.    "Where  a  protest  is  defective  in  not  stating  how  notice  was  given 
to  an  indorser,  the  necessary  facts  may  be  supplied  by  evidence  aliunde.    Brad- 
ley v.  Davis,  26  Me.  45. 

2  O'Neil  v.  Dickson,  11  Ind.  253.    A  certificate  stating  that  notice  was  left  at 
the  indorser's  desk  in  the  custom-house,  with  a  person  in  charge,  he  being 
absent;  is  admissible,  and  is  prima  facie  evidence  of  due  service.    Bank  of  Com- 
monwealth v.  Mudgett,  44  N.  Y.  514. 

3  Caruthers  v.  Harbert,  5  Coldw.  362. 

4  48  Me.  172. 


150  NOTARIAL    ACTS    AS    EVIDENCE.  §§  147-8 

dishonor  of  the  note."  It  is  not  easy  to  distinguish  this  case 
from  the  case  of  Ticonic  Bank  v.  Stackpole,  Supra.  On  an 
examination,  however,  it  will  appear  that  in  the  former  case 
there  were  facts  in  the  protest  showing  the  dishonor  of  the  note, 
sufficient  for  the  Court  to  assume  the  fact  of  dishonor,  implying 
a  presentment,  demand,  and  refusal ;  whereas,  it  appears  in  the 
latter  case  there  was  nothing  showing  notice  of  the  fact  of  dis- 
honor. The  notice  was  not  produced  in  the  latter  case,  and  no 
inference  as  to  its  contents  could  be  raised. 

§  147.  When  notice  is  sent  by  the  mail  the  certificate 
must  show  the  fact  clearly  in  order  to  appear  it  was  proper  un- 
der the  statute  to  send  notices  in  that  mode.  A  notarial  certifi- 
cate, stating  that  notice  of  protest  was  served,  etc.,  by  putting 
the  same  in  the  post-office,  directed,  etc.,  is  a  sufficient  compli- 
ance with  the  statute  in  New  York,  though  it  do  not  expressly 
state  by  whom  the  service  was  made.1  Proof  tha$  the  notice 
was  placed  in  the  post-office,  at  nine  o'clock  in  the  forenoon  of 
the  day  on  which  it  should  be  sent,  without  showing  that  it  was 
in  season  to  be  carried  by  the  mail  of  that  day,  is  not  sufficient.2 
And  in  the  same  case  it  was  decided  that  when  the  indorser  re- 
sides in  a  different  State  from  that  in  which  the  demand  on  the 
acceptor  was  made,  and  when  there  is  a  town  of  the  same  name 
in  at  least  two  States,  the  direction  of  the  notice  should  not  only 
name  the  town  in  which  the  drawer  resides,  but  also  the  State. 
The  protest  of  a  notary  public  of  another  State,  wherein  he 
states  that  he  sent  a  notice  of  the  dishonor  of  a  bill  to  the 
drawer  on  the  next  day  after  a  demand  and  refusal,  "  and  by 
the  first  practicable  mail  thereafter,"  is  competent  evidence  to 
prove  the  fact  thus  stated.3  Where  a  notary's  certificate  shows 
that  he  has  mailed  notice  of  protest,  a  prepayment  of  postage 
will  be  presumed.4 

§  148.  The  certificate  must  show  notice  of  dishonor,  or 

it  cannot  be  admitted  in  evidence.     The  notice  given  must  con- 

1  Barber  v.  Ketchum,  7  Hill,  444;  S.  C.  4  Hill,  224. 

2  Beckwith  v.  Smith,  22  Me.  125. 

a  Beckwith  «.  St.  Croix  Man.  Co.  23  Me.  284.    See  Housatonic  Bank  v.  Laflin, 
5  Cush.  540. 
4  Brooks  v.  Day,  11  Iowa,  40. 


§§  149-50  NOTARIAL    ACTS   AS   EVIDENCE.  151 

vey  such  fact  clearly  and  unequivocally  to  the  party.  Thus,  a 
protest  of  a  note  payable  at  a  bank,  stating  that  written  notices 
had  been  addressed  to  the  indorsers,  "  informing  each  of  them 
that  he  was  held  liable  for  the  payment  of  the  said  note,  with- 
out stating  that  the  note  was  due  and  unpaid,  is  insufficient  to 
charge  the  indorsers." l  The  notarial  certificate  should  show  af- 
firmatively a  presentation  to  the  person  upon  whom  the  demand 
of  payment  should  properly  be  made.2  A  certificate  stating 
that  the  notary  gave  "  notice  of  the  non-payment  of  the  bill  " 
must  be  understood  to  mean  that  the  notice  was  of  non-payment 
on  due  presentment  and  demand,  as  stated  in  the  certificate  of 
protest,  and  is  sufficient.3  It  must  show  a  presentment  for 
payment  by  the  notary  himself.4 

§  149.  The  certificate  need  not  state  at  whose  request 
notice  was  given,  for  it  will  be  presumed  it  was  done  at  the 
instance  of  the  holder.5  It  will  also  be  presumed  the  notary 
had  the  draft  in  his  possession  at  the  time  he  demanded  pay- 
ment.6 

§  150.  Date  of  certificate. — Where  a  notary  keeps  a  reg- 
ister, and  notices  therein  his  acts  in  protesting  and  giving 
notice,  he  can  make  up  his  certificate  at  any  time  thereafter 
from  such  entry,  and  it  will  be  received  in  evidence  as  if  made 
at  the  time  of  the  occurrence  of  the  acts.7 

In  Austin  v.  Wilson,8  it  was  held  that  it  was  not  essential 
that  the  entire  record  of  the  notary  should  be  made  at  the  very 
moment  of  the  transaction,  but  it  is  sufficient  if  done  within  a 
few  days,  in  the  ordinary  course  of  business.  But  in  a  case 

1  Farmers'  Bank  v.  Bowie,  4  Md.  290. 

2Duckert  v.  Von  Lilienthal,  11  Wis.  56;  Otsego  Co.  Bank  v.  Warren,  18  Barb. 
290. 

8Burbank  v.  Beach,  15  Barb.  326;  Seneca  Co.  Bank  v.  Neass,  3  N".  Y.  442. 

4  Warnick  v.  Crane,  4  Den.  460;  Hunt  v.  May  bee,  7  N.  Y.  266;  Bank  of  Ken- 
tucky v.  Garey,  6  B.  Mon.  626;  except  where  deputies  are  authorized  to  make 
demand  as  in  Louisiana ;  see  Lee  v.  Buf ord,  4  Mete.  Ky.  7 ;  Chew  v.  Eeed,  19 
Miss.  182. 

SDuckert  v.  Von  Lilienthal,  11  Wis.  56;  Burbank  v.  Beach,  15  Barb.  326. 

°Bank  of  Louisiana  v.  Satterfleld,  14  La.  An.  80;  Bank  of  Vergennes  v.  Cam- 
eron, 7  Barb.  143. 

i  Chatham  Bank  v.  Allison,  15  Iowa,  357;  Brandon  u.  Loftus,  4  How.  Miss.  127. 

8  24  Vt.  630. 


152  NOTARIAL  ACTS  AS  EVIDENCE.          §  151 

where  the  notary  made  protest  and  notified  indorsers  in  March, 
1839,  and  in  October,  1845,  more  than  four  years  and  a  half 
thereafter,  made  out  his  certificate,  the  Court  refused  to  admit 
the  certificate  in  evidence.1  It  is  not  easy  to  see  on  what 
ground  the  certificate  was  rejected  in  this  case ;  for  if  the  no- 
tary kept  a  record  of  his  official  acts,  such  record  ought  to  ena- 
ble him  at  any  time  thereafter  to  make  out  his  certificate. 
Where  the  statute  required  the  certificate  to  be  "  either  in  or  on 
the  protest,"  and  a  certificate  was  made  out  more  than  a  year  af- 
terward, and  not  on  the  protest,  it  was  held  inadmissible  in  evi- 
dence.2 

§  151.  The  certificate  should  be  under  the  notarial 
seal  as  a  general  rule,  invariably  so  if  it  be  a  foreign  bill  of 
exchange.  In  some  places,  it  has  been  held  that  the  certificate, 
if  signed  by  the  notary,  need  not  be  under  his  seal  when  the 
certificate  is  offered  in  evidence  to  show  notice  given  of  the 
protest  of  a  promissory  note. 

Thus,  in  Palmer  -y.  Whitney,3  the  certificate  of  notice  of  pro- 
test of  a  promissory  note  did  not  bear  the  official  seal  of  the 
notary,  though  the  statute  required  that  all  notarial  acts  be 
attested  by  a  seal.  The  objection  was  therefore  raised  that  the 
certificate  was  not  admissible  on  this  account ;  but  the  Court 
held  that  as  the  notary  when  he  gives  notice  of  protest  does  not 
act  officially,  but  as  the  agent  for  the  holder,  his  mere  signature 
to  the  notice,  without  attestation  by  his  seal  of  office,  is  sufficient. 
It  seems  to  me  that  <}iis  decision  is  very  doubtful,  and  would 
hardly  be  accepted  as  authority  elsewhere.  Thus,  in  Iowa,  it 
is  held  that  a  notary's  protest  is  inadmissible  in  evidence  unless 
his  seal  be  affixed,  though  it  is  allowable  for  him  to  affix  his 
seal  when  this  objection  is  made  ; 4  but  it  is  not  necessary  that 
the  certificate  should  formally  refer  to  the  seal.5 

In  a  case  in  New  York,  the  question  was  raised  whether  the 
usual  certificate  of  notice  when  written  beneath  the  protest, 
which  was  under  seal,  must  also  have  a  seal,  and  it  was  decided 

1  Boggs  v.  Bank  of  Mobile,  10  Ala.  970. 

2  Winchester  v.  "Winchester,  4  Humph.  51. 
»21Ind.  58. 

4  Rendskoff  v.  Malone,  9  Iowa,  540. 
6  Jones  v.  Berryhill,  25  Iowa,  289. 


§§  152-3  NOTARIAL   ACTS   AS   EVIDENCB.  153 

that  it  was  unnecessary :  so  long  as  the  seal  appeared  on  the 
instrument,  it  was  immaterial  where  it  was  appended.1 

§  152.   Presumptions  in  favor  of   certificate. — As  the 

certificate  is  made  evidence  of  certain  facts  by  statute,  it  must 
clearly  state  these  and  no  more ;  it  must  be  strictly  construed 
with  reference  to  these  facts,  and  cannot  be  aided  by  pre- 
sumption. The  Courts  will,  however,  in  the  absence  of  evidence 
to  the  contrary,  presume  in  favor  of  the  notary  discharging  his 
duties  properly  and  regularly :  as  when  it  is  not  clear  from  the 
certificate  at  what  time  a  presentment  was  made,  it  will  be  pre- 
sumed it  was  during  regular  business  hours,  and  that  the 
notary  had  the  draft  in  his  possession.2 

So  it  is  held  that  every  intendment  is  to  be  in  favor  of  the 
performance  of  his  duty  by  a  notary  who  certifies  to  the  protest 
of  negotiable  paper  for  non-payment.3 

Where  the  certificate  of  a  notary  stated  that  he  exhibited 
the  note  at  the  place  of  business  of  the  promisors,  and,  demand- 
ing payment  thereof,  was  answered  by  the  person  in  charge 
that  the  promisors  had  left  no  funds  there  to  pay  the  note,  and 
that,  said  note  remaining  unpaid,  he  duly  notified  the  indorsers 
by  written  notices,  sent  them  by  mail,  having  been  requested  so 
to  do  by  the  bank  holding  the  note^s,  the  time  limited,  and 
grace  having  expired — it  was  held  that  it  might  reasonably  be 
inferred  that  he  stated  these  facts  in  the  written  notices.4 

§  153.  Parol  evidence  affecting  certificate. — It  must 
often  be  a  practical  inquiry  as  to  how  far  a  notary  can  by  oral 
evidence  affect  or  control  his  certificate  of  protest  and  notice. 
This  much  is  certain,  that  a  notary  public  who  has  made  a  pro- 
test of  a  promissory  note,  and  given  due  notice  thereof  to  the 
indorser,  cannot  be  permitted,  by  oral  evidence,  to  contradict  or 
vary  what  he  has  certified  to,  so  as  to  weaken  the  certificate.5 
But  he  may,  by  oral  evidence,  explain  his  certificate  so  as  to 

i  Olcott  v.  Tioga  K.  E.  Co.  27  ST.  Y.  546. 

2De  Wolf  v.  Murray,  2  Sandf.  166;  Bank  of  Louisiana  v.  Satterfield,  14  La. 
An.  80;  Union  Bank  v.  Foulkes,  2  Sneed,  555. 
SMcAndrew  v.  Kadway,  34  N.  Y.  511. 
4  Lewiston  Falls  Bank  v.  Leonard,  43  Me.  144. 
6  Garthwaite  v.  Casson,  23  La.  An.  218 ;  Barro-w  v.  Richardson.  Id.  203. 


154  NOTARIAL   ACTS   AS   EVIDENCE.  §§  154-5 

support  it,  and  supply  an  omission  or  defect  in  it.1  Thus,  in  an 
action  on  notes  against  an  indorser,  the  defendant  denied  that 
certain  collateral  bonds  were  tendered  to  the  maker  at  the  time 
the  notes  were  presented  for  payment,  as  required  by  an  agree- 
ment indorsed  on  said  notes.  It  was  held  that  the  notary  who 
had  protested  the  notes  could  testify  to  facts  connected  with  the 
tender,  although  no  mention  was  made  of  it  in  the  protest.2 

A  late  case  in  Maryland  is  instructive  in  this  connection. 
The  certificate,  dated  December  23d,  1871,  gave  notice  of  the 
non-payment  of  the  note,  stating  that  payment  had  been  de- 
manded and  refused.  The  note  was  due  on  the  previous  day, 
but  there  was  no  statement  in  the  certificate  showing  it  was  then 
presented.  It  was  permitted  to  introduce  oral  testimony  to 
prove  it  had  been  presented  on  December  22d,  at  the  date  of  its 
maturity.3 

§  154.  Records  of  a  deceased  notary  as  evidence. — 

By  the  common  law,  the  records  of  a  deceased  person,  duly 
made  in  the  discharge  of  his  duties,  were  admissible  in  evidence.4 
Hence,  the  records  of  a  notary,  showing  a  demand  of  pay- 
ment and  notice  to  indorsers,  have  been  allowed  in  evidence 
after  the  notary's  death,  though,  if  living,  he  would  have  to  be 
called  to  testify  to  the  same  facts.5  Now,  by  statute,  such 
records  are  admissible  in  evidence  after  the  decease  of  the  no- 
tary, to  prove  protest  and  notice.6 

CERTIFICATE  OF  ACKNOWLEDGMENT. 

§  155.  Character  of  evidence. — While  a  certificate  of  ac- 
knowledgment is  not  at  all  times  conclusive,  it  certainly  is  the 
very  strongest  evidence  of  the  facts  therein  recited,  and  can 
only  be  overcome  by  evidence  of  tho  clearest,  strongest,  and 

1  Bradley  v.  Davis,  26  Me.  45 ;  Naylor  v.  Bowie,  3  Mrt.  251. 

2  Butler  v.  Murison,  18  La.  An.  363. 

8  Reynolds  v.  Appleman,  41  Md.  615.  The  Court,  in  this  case,  distinguished 
it  from  Ransom  v.  Mack,  2  Hill,  587  ;  Routh  v.  Robertson,  11  Sm.  &  M.  382 ; 
Tovrasend  v.  Lorain  Bank,  2  Ohio,  345  ;  Wyman  v.  Alden,  4  Denio,  163 ;  because 
in  these  cases  the  time  of  making  the  demand  was  explicitly  stated. 

*  1  Greenlf .  on  Ev.  Sec.  115. 

6  Brewster  v.  Doane,  2  Hill,  537 ;  "Welch  v.  Barrett,  15  Mass.  380;  Butler  v. 
Wright,  2  Wend.  369  ;  Homes  v.  Smith,  16  Me.  181. 

e  Ogden  v.  GUdewell,  6  Miss.  179. 


§  156  NOTARIAL    ACTS   AS    EVIDENCE.  155 

most  convincing  character,  by  disinterested  witnesses.1  Least 
of  all,  can  it  be  contradicted  by  the  officer  who  certified  to  the 
acknowledgment.2  So,  where  a  mortgage  bore  the  notarial  seal 
•and  signature  of  S  S,  but  S  S  testified  that  he  never  affixed  his 
seal  to  it,  and  that  he  believed  himself  to  have  been  the  only 
S  S  notary  in  Cincinnati,  it  was  held  that  the  seal  proved  itself, 
prima  facie,  and  that  the  presumption  in  favor  of  the  deed 
was  not  rebutted.3 

So,  in  Morris  v.  Sargent,4  it  was  held  that  mere  want  of  recol- 
lection of  signing  and  acknowledging  the  execution  of  a  deed 
should  have  but  little  weight  against  the  certificate  of  the 
officer  that  such  execution  was  duly  acknowledged;  that  the 
burden  of  proof  is  upon  the  party  who  impeaches  the  truthful- 
ness of  the  official  certificate  of  the  acknowledgment  of  the 
execution  of  a  deed,  and  the  fact  that  a  notary  cannot  remember 
incidents  connected  with  the  acknowledgment  is  entitled  to  little 
weight  as  against  the  certificate. 

§  156.   When  certificate  may  be  impeached. — It  is  the 

policy  of  the  law  to  give  the  fullest  faith  and  credit  to  the  acts 
of  officers  clothed  with  judicial  or  ministerial  duties.  On 
this  principle,  the  certificate  of  acknowledgment  duly  executed 
is  sustained,  except  where  the  evidence  adduced  to  impeach  it 
is  of  strong  and  convincing  character ;  and  then  the  decisions 
hold  that  it  can  be  impeached  only  for  fraud  or  combination. 
Not  always  even  then,  as  when  a  purchaser  in  good  faith  acts  on 
such  certificate,  having  no  knowledge  of  any  fraud.  The  cer- 
tificate will  not  entirely  conclude  a  grantor  ; 5  he  may  show  he 
never  executed  the  instrument,  and  that  if  he  did  it  was  not  ac- 
knowledged as  set  forth,  or  that  he  was  induced  by  fraud  or 
combination  to  so  acknowledge  it.  But  there  must  be  some- 
thing more  than  the  evidence  of  the  grantor  to  counteract  and 
impeach  the  certificate,  for  that  must  prevail  over  his  unsup- 

1  Kerr  v.  Russell,  69  111.  666  ;  Van  Orman  v.  McGregor,  23  Iowa,  300. 

2  Central  Bank  v.  Copeland,  18  Md.  305  ;  Harkins  v.  Forsyth,  11  Leigh,  294 ; 
Stone  v.  Montgomery,  35  Miss.  83. 

8  "Wright  v.  Bundy,  11  Ind.  398.     It  will  be  observed  that  the  officer's  evidence 
was  admitted  in  this  case,  because  he  denied  executing  the  certificate. 
*  18  Iowa,  90. 
5  Hutchinson  v.  Rust.  2Gratt.  394;  Dodge  v.  Hollinshead,  6  Minn.  25. 


156  NOTARIAL  ACTS  AS  EVIDENCE.         §  157 

ported  evidence.  So  in  Lickmon  v.  Harding,1  the  Court  say 
that  "public  policy  requires  such  an  act  should  prevail  over 
the  unsupported  testimony  of  an  interested  party,  otherwise 
there  would  be  but  slight  security  in  titles  to  land."  The  same 
point  was  brought  up  for  examination  in  Calumet  etc.  Co.  v. 
Russell,2  where  an  elaborate  review  of  the  authorities  was  made, 
and  it  was  held  that  the  official  certificate  of  the  acknowledg- 
ment of  a  deed  for -real  estate  must  prevail  over  the  unsup- 
ported testimony  of  an  interested  party  in  the  absence  of  proof 
of  fraud  or  collusion. 

§  157.  Can  be  impeached  for  fraud  or  collusion. — The 

cases  all  show  that  the  certificate  can  be  impeached  for  fraud 
or  collusion,  and  that  oral  evidence  is  admissible  to  show  this.3 
Thus,  if  a  married  woman  should  be  persuaded,  by  fraudulent 
statements  as  to  the  nature  of  the  consideration  her  husband 
was  to  receive,  to  join  in  a  conveyance  of  his  land,  she  would 
not  be  barred  of  her  dower  in  the  land  while  in  the  hands  of  the 
party  to  the  fraud,  but  it  would  be  otherwise  in  case  the  land 
came  into  the  possession  of  a  bona  fide  purchaser,  without  notice 
of  the  fraud.  He  has  a  right  to  rely  on  the  certificate  as  the 
highest,  fullest,  and  most  conclusive  evidence  that  her  title  has 
been  relinquished ;  and  as  to  him,  and  all  other  bona  fide 
purchasers,  the  certificate  is  conclusive — it  cannot  be  impeached 
by  oral  evidence,  so  long  as  it  is  regular  on  its  face.  The 
security  of  titles  demands  this,  that  a  bona  fide  purchaser  shall 
be  able  to  rely  implicjtly  and  exclusively  on  the  certificate,  pro- 
vided it  is  regular  on  its  face,  and  there  is  nothing  to  put  him 
upon  inquiry.  This  question  has  been  fully  and  ably  discussed 
in  a  late  case  in  Illinois,  which 'is  very  instructive  in  this  con- 
nection. In  this  case,4  a  married  woman  sought  to  impeach  the 

1 65  HI.  505. 

2  68  HI.  426. 

8  Graham  u.  Anderson,  42  HI.  514;  Montgomery  v.  Hobson,  Meigs,  Tenn.  437; 
Williams  v.  Robson,  6  Ohio  St.  510. 

<Kerr  v.  Russell,  69  HI.  666.  The  Albany  L.  Journal,  vol.  14,  p.  273,  criticises 
this  case,  and  says:  "  But  the  Court  say  '  the  unsupported  testimony  of  a  party 
to  a  deed  that  he  did  not  execute  it  shall  not  prevail  over  the  official  certificate 
of  the  officer  taking  the  acknowledgment.'  This  is  giving  to  such  a  certificate 
even  greater  sanctity  and  force  than  attach  to  commercial  paper;  it  prevents  the 
possibility,  in  the  great  majority  of  cases,  of  proving  the  forgery,  and  subjects 


§  157  NOTARIAL    ACTS    AS    EVIDENCE.  157 

certificate,  on  the  ground  that  she  never  acknowledged  the  deed 
nor  executed  it.  The  certificate  on  its  face  was  regular  and 
formal,  and  the  land  had  passed  to  several  purchasers.  The 
decision  was  given  by  Chief  Justice  Breese,  and  deserves  at- 
tention for  the  careful  and  salutary  views  it  lays  down  regard- 
ing the  certificate  as  evidence.  It  was  there  held  that  an  inno- 
cent purchaser  of  land  has  a  right  to  rely  upon  the  record  of  a 
deed  which  shows  upon  its  face  that  a  wife  has  executed  and 
properly  acknowledged  a  deed  with  her  husband,  and  the  wife 
will  not  be  allowed  to  avoid  the  same,  as  to  such  a  purchaser, 
without  notice,  by  showing  her  signature  to  be  a  forgery,  and 
that  she  never,  in  fact,  acknowledged  the  same. 

married  -women  to  the  mercy  of  unscrupulous  husbands  and  careless  or  dis- 
honest notaries.  It  must  at  least  be  a  question  for  the  jury.  This  is  precisely 
the  province  of  the  jury.  "Whether  the  bare  oath  of  the  interested  party  should 
prevail  against  the  certificate  of  the  officer,  -would  depend  on  a  variety  of  con- 
siderations— character,  intelligence,  memory,  probability,  and  so  forth;  but 
still  it  is  a  question  of  fact  and  not  of  law."  It  is  true  that  one  reading  the 
syllabus  of  this  case  may  be  misled,  and  might  get  the  impression  that  in  no 
case  could  the  certificate  be  impeached  in  the  hands  of  an  innocent  vendee,  not 
even  if  the  signature  was  a  forgery.  Now,  no  such  inference — which  would  be 
incredible — can  be  derived  from  the  case.  Surely,  if  it  is  proven  that  a  married 
woman  never  executed  her  deed,  never  personally  appeared  before  the  officer 
to  acknowledge  it,  it  is  impossible  that  she  could  be  concluded  by  the  certifi- 
cate, no  matter  how  many  may  have  relied  upon  it.  But  this  case  only  goes  to 
show  that  the  evidence  to  impeach  the  certificate  for  fraud  or  forgery  must  be 
very  complete  and  overwhelming;  it  does  not,  by  any  means,  pretend  to  hold 
that  it  cannot  be  impeached. 


158  COMMISSIONERS    OF   DEEDS.  §§  158-9 


CHAPTER  IX. 

COMMISSIONERS  OF   DEEDS. 

§  158.  Appointment. 

§  159.  Qualifications. 

§  1GO.  Number  appointed. 

§  161.  Period  for  which  appointed. 

§  102.  Powers. 

§  163.  Conditions  to  be  complied  with  before  exercising  duties. 

§  164.  Fee  paid  for  commission. 

§  165.  Requirements  as  to  seal. 

§  166.  Authentication  of  acts. 

§  167.  Fees. 

§  168.  Appointments  published. 

§  158.  Appointment. — As  a  general  rule,  throughout  the 
United  States,  commissioners  of  deeds  are  appointed  by  the 
Governor  of  a  State,  to  act  in  other  States.  There  are  a  few 
States  where  the  governor  appoints  by  and  with  the  consent  of 
the  senate  or  council.  Thus,  in  Maryland,  the  statute  provides 
for  the  appointment  of  commissioners  of  deeds  by  the  governor, 
by  and  with  the  advice  and  qonsent  of  the  senate  ;  and  the  ap- 
pointment and  commissions  are  to  be  made  biennially.1  So,  in 
New  Jersey,  the  governor  is  to  appoint,  by  and  with  the  advice 
and  consent  of  the  senate.2  In  Massachusetts,  the  governor  is 
to  appoint,  with  the  advice  and  consent  of  his  council ; 3  and  the 
same  is  the  provision  in  New  Hampshire.4 

§  159.  Qualifications. — It  would,  of  course,  be  expected 
that  the  applicant  for  appointment  should  be  a  person  who  can 
bring  recommendations  as  to  character  and  intelligence  ;  and  it 
is,  therefore,  invariably  the  rule  to  require  satisfactory  assur- 
ance as  to  intelligence  and  integrity.  In  most  cases,  the  mode 
of  procuring  and  presenting  such  evidence  of  character  and 
eligibility  is  prescribed  by  regulations  drawn  up  in  the  execu- 

1  Code  1860,  p.  119.  «  Rev.  Stat.  1860,  p.  132. 

2  Nixon's  Dig.  p.  155.  *Gen.  Stat.  1867.  p.  63. 


§§  160-1  COMMISSIONERS    OF    DEEDS.  159 

tive  department  of  each  State,  which  regulations  can  be  ob- 
tained on  application ;  but,  in  a  few  instances,  the  statutes 
provide  certain  qualifications,  or  conditions  for  appointment. 
For  instance,  in  Illinois,  the  statute  provides  for  a  certain  num- 
ber of  commissioners  to  be  appointed,  and  then  provides  that 
the  governor  may  appoint  one  additional  for  every  ten  thousand 
inhabitants  in  the  cities  of  other  States  and  Territories,  when 
the  governor  receives  a  certificate  under  the  seal  of  the  mayor 
of  the  city,  or  the  judge  of  a  Court  of  record  of  a  city  in  which 
such  applicant  resides  or  desires  to  open  an  office,  of  the  number 
of  inhabitants  of  said  city,  and  that  said  applicant  is  a  proper 
person  to  receive  such  appointment.1  And,  in  Michigan,  it  is 
provided  that  the  applicant,  in  all  cases,  shall  present  a  written 
application,  with  proper  recommendation  for  such  office,  from 
the  governor  of  his  State,  or  from  a  judge  of  a  Court  of  Record 
in  the  county  where  such  applicant  resides,  or  other  satisfactory 
evidence  of  his  fitness  for  the  office,  and  shall  pay  into  the  State 
treasury  three  dollars.2 

§  160.  Number  appointed. — The  statutes,  in  nearly  all  in- 
stances, give  the  governor  authority  to  appoint  as  many  as  he 
deems  expedient ;  in  a  few  cases,  the  limit  is  prescribed,  as  in 
Illinois,  where  it  is  provided  that  the  governor  may  appoint  as 
many  as  he  deems  expedient,  but  the  number  of  such  commis- 
sioners shall  at  no  time  exceed  five  in  any  one  city  or  county.3 
In  New  York,  the  governor  may  appoint  one  or  more  commis- 
sioners, not  exceeding  five,  in  each  city  in  any  foreign  State  or 
country.4 

§  161.  Period  for  which  appointed. — In  many  of  our 
States,  there  is  no  limited  period  prescribed  for  which  they  are 
appointed.  The  statutes  use  the  expression  that  they  "  shall 
hold  office  during  the  pleasure  of  the  governor."  This  is  the 
case  in  Alabama,  Arkansas,  Florida,  Georgia,  Kansas,  Maine, 
Maryland,  Minnesota,  Missouri,  North  Carolina,  Pennsylvania, 
South  Carolina,  Texas,  Vermont,  West  Virginia,  and  Wiscon- 
sin. In  the  remaining  States,  there  is  a  definite  period  pre- 

1  Rev.  Stat.  1874,  p.  267.  3  RCV.  Stat.  1874,  p.  266. 

2  Coinp.  Laws,  1871,  p.  220.          *2  Rev.  Stat.  (5th  Ed.  1142. 


160  COMMISSIONERS   OF   DEEDS.  §  162 

scribed  for  which  they  are  appointed.  Four  years  is,  in  these 
States,  the  general  period  for  which  they  are  appointed.  This 
is  the  term  in  California,1  Illinois,2  Indiana,3  Nebraska,4 
Nevada,5  New  York,6  and  Oregon.7  In  the  Territory  of  Ari- 
zona, the  period  is  also  four  years.8  In  Connecticut,  the  term  is 
five  years  ;  9  and  the  same  is  the  term  in  Michigan  10  and  New 
Hampshire.11  In  Delaware  it  is  seven  years,  the  longest  def- 
inite period.12  In  the  States  of  Kentucky,  Mississippi,  and 
Virginia,  the  term  is  two  years  ;  13  and  in  Iowa,  New  Jersey, 
and  Ohio,  it  is  three  years.14 

§  162.  Powers.  —  The  powers  conferred  on  commissioners  of 
deeds  under  our  statutes  are  very  uniform  throughout.  These 
powers  are  to  administer  oaths  and  affirmations,  and  to  take  dep- 
ositions, affidavits,  and  the  proof  and  acknowledgment  of  deeds 
or  other  instruments  of  writing,  to  be  used  or  recorded  in  the 
State  from  which  they  derive  their  appointment.  The  statutes, 
moreover,  provide  that  their  acts  are  to  have  the  same  force 
and  effect,  and  shall  be  as  effectual  in  law,  as  if  done  and 
certified  by  any  justice  of  the  peace  or  other  authorized  officer 
within  the  State.  It  was  decided,  in  a  case  in  Georgia,  that  a 
commissioner  of  deeds  had  no  power  to  certify  to  the  official 
character  of  a  foreign  officer  in  the  State  where  the  commis- 
sioner resides.15  Usually,  the  acknowledgment  need  only  be 
attested  by  the  commissioner  ;  but  in  Georgia,  a  mortgage  of 
real  property,  besides  being  acknowledged  before  an  officer 
empowered  to  take  acknowledgments,  is  required  to  be  attested 
by  a  witness.  In  MeCrary  v.  Anstell,16  it  appeared  a  mortgage 
was  executed  in  New  York  in  the  presence  of  Edwin  F.  Corey, 
a  commissioner  of  the  State  of  Georgia,  and  no  other  witness 
than  Corey  attested  the  mortgage  deed,  for  the  reason  that  it 
was  the  belief  of  both  parties  that  such  execution  was  valid 
without  being  attested  by  another  witness.  In  an  action  to 


l.  Code,  Sec.  811.  *  Geu.  La'w'3  1874>  P-  293- 

2  Rev.  Stat.  1874,  p.  266.  8  Comp.  Laws,  p.  347, 

3  1  G.  &  H.  254.  "Rev.  Stat.  1875,  p.  22. 

4  Gen.  Stat.  1873,  p.  877.  10  Comp.  Laws,  p.  220. 

6  Comp.  Laws,  Sec.  324.  n  Gen.  Stat.  1867,  p.  63. 

6  2  Rev.  Stat.  6th  Ed,  1142.  12  Rev.  Code  1874,  p.  183. 

is  Rev.  Code  Ky.  p.  203;  Code  of  Miss.  Sec.  800;  Code  of  Va.  p.  568. 
i*  Code  of  Iowa,  p.  43;  Nixon's  Dig.  p.  155;  1  Swan  &  C.  874. 
15  O'Bannon  v.  Paremour,  24  Ga.  489.  1046  Ga.  450. 


§§  163-4  COMMISSIONERS   OF   DEEDS.  161 

foreclose  this  mortgage,  it  was  decided,  that  as  equity  would 
have  power  under  such  circumstances  to  reform  the  mortgage, 
it  would  still  retain  it  to  foreclose  it. 

§  163.  Conditions  to  be  complied  with  before  exercis- 
ing duties. — Before  the  commissioner  can  proceed  to  execute 
the  duties  of  his  office  there  are  two  prerequisites  the  statutes 
point  out.  These  are,  to  take  and  subscribe  an  oath  to  faithfully 
discharge  the  duties  of  his  employment,  and  to  provide  a  seal ; 
then,  within  a  certain  definite  period  after  his  appointment,  to 
file  the  affidavit,  and  an  impression  of  his  seal  and  signature,  in 
the  office  of  the  Secretary  of  State.  The  period  allowed  to  do 
this  is  generally  six  months ; l  in  other  cases,  it  is  three  months.2 
When  an  application  is  made  to  the  executive  for  appointment, 
a  blank  form  of  affidavit  is  returned  to  the  applicant,  which  he 
is  required  to  fill  up,  and  swear  to  before  some  officer  having 
authority  to  administer  oaths  in  his  State. 

In  one  of  our  States  only  is  a  bond  required  by  statute  from 
the  applicant.3  In  Vermont,  it  is  provided :  "  Before  any  com- 
missioner, appointed  as  aforesaid,  shall  proceed  to  perform  any 
of  the  duties  of  his  office,  he  shall  take  and  subscribe  an  oath 
before  some  magistrate,  authorized  to  administer  oaths  in  the 
State  for  which  commissioner  is  appointed,  that  he  will  faithfully 
discharge  the  duties  of  his  office,  and  shall  execute  a  bond  to 
the  State,  with  sureties  to  the  satisfaction  of  the  governor,  in 
the  penal  sum  of  8500,  conditioned  for  the  proper  exercise  of 
the  powers  and  the  faithful  discharge  of  his  duties  as  commis- 
sioner, which  bond  may  be  put  in  suit  in  the  name  of  the  State, 
against  the  principal  and  sureties,  or  any  or  either  of  them,  by 
any  person  who  has  been  injured  by  the  neglect  of  such  com- 
missioner.' 


"4 


§  164.  Fee  paid  for  commission. — Before  a  commission  is 
delivered,  it  is  the  general  rule  to  require  a  certain  fee  from  the 

1  As  in  Arkansas,  Arizona,  California,  Illinois,  Missouri,  New  Hampshire. 

2  As  in  Mississippi. 

3  The  author  is  aware  that  in  a  few  places  a  bond  is  required  by  the  executive 
from  the  appointee;  where  this  is  the  case,  and  the  amount  will  be  learned, 
when  application  is  made  to  the  executive  department  of  a  State. 

4  Rev.  Stat.  1870,  p.  73. 

NOTARIES — 11. 


162  COMMISSIONER   OF    DEEDS.  §    165 

appointee,  which  is  usually  not  above  ten  dollars.  The  statutes 
provide,  in  some  cases,  for  the  disposition  of  the  money  so  ob- 
tained on  the  commission.  In  Arizona,  the  secretary  of  the  Ter- 
ritory shall  be  entitled  to  receive  a  compensation  of  ten  dollars 
from  each  person  hereafter  appointed  and  commissioned.1  In  Illi- 
nois, the  secretary  of  State  is  required  to  forward  forms  and  in- 
structions to  commissioners,  and  with  the  certificate  of  appoint- 
ment a  copy  of  the  laws  relative  to  such  officers,  for  which  he  shall 
be  entitled  to  receive  five  dollars.2  In  Mississippi,  the  Secretary 
of  State  is  entitled  to  receive  two  dollars  and  fifty  cents  for 
every  commission.3  In  Nevada,  the  appointee  is  required  to 
pay  ten  dollars,  exclusive  of  other  legal  charges  on  his  commis- 
sion, for  the  use  of  the  "  Library  Fund "  of  the  State.4  In 
Ohio,  the  fee  to  be  paid  is  three  dollars,  and  the  money  obtained 
in  this  manner,  after  paying  the  wages  of  a  messenger  for  the 
executive  officer,  shall  form  part  of  the  compensation  of  the 
private  secretary  of  the  governor.5  In  West  Virginia,  the  fee 
is  fixed  at  five  dollars.6 

§  165.  Requirements  as  to  seal. — A  seal  is  indispensably 
necessary  before  the  commissioner  can  execute  the  duties  of  his 
office.  In  some  States,  no  particular  provision  is  made  for  a  de- 
scription of  seal,  it  being  a  general  rule  that  the  name  of  the 
commissioner  shall  appear  thereon,  with  the  words,  "  A  Com- 
missioner for  the  State  of -,"  and  the  name  of  the  city  or 

place  where  the  commissioner  exercises  the  duties  of  his  office. 
Such  States  as  have  made  special  provision  for  a  description  of 
a  seal  to  be  used  by*  a  commissioner,  we  will  now  notice.  In 
California,  the  statute  requires  him  to  have  an  official  seal,  upon 
which  must  be  engraved  the  arms  of  the  State,  the  words, 
"  Commissioner  of  Deeds  for  the  State  of  California,"  and  the 
name  of  the  State  for  which  he  is  commissioned.7  In  Illinois, 
on  the  seal  shall  be  designated  his  name,  and  the  words,  "  A 
Commissioner  for  the  State  of  Illinois,"  together  with  the  name 
of  the  State,  Territory,  or  country  for  which  appointed.8  In 
Iowa,  on  the  seal  shall  be  engraved  the  words,  "  Commissioner 

1  Comp.  Laws,  p.  347.  5  1  Swan  &  C.  874. 

2  Rev.  Stat.  1874,  p.  267.  6  Code  1868,  p.  387. 

»  Code  1871,  Sec.  800.  ?  Pol.  Code,  Sec.  812. 

4  Coinp.  Laws,  Sec.  328.  »  Rev.  Stat.  1874,  p.  266. 


§  166  COMMISSIONERS    OF    DEEDS.  163 

for  Iowa,"  with  his  surname  at  length,  and  at  least  the  initials 
of  his  Christian  name ;  also,  the  name  of  the  State  in  which  he 
acts.1  In  Massachusetts,  on  the  seal  shall  be  designated  his 
name,  the  words,  "  Commissioner  for  Massachusetts,"  and  the 
name  of  the  State  or  Territory,  city  and  county  where  the 
commissioner  resides.2  In  Nebraska,  his  name  and  the  words, 
"  A  Commissioner  for*  Nebraska,"  together  with  the  name  of 
the  State  or  Territory,  city  and  county  within  which  he  shall 
reside,  and  for  which  appointed.3  In  New  York,  to  have  name, 
and  the  words,  "  Commissioner  of  Deeds  for  the  State  of  New 
York,"  with  the  name  of  the  city  and  foreign  State  or  country 
for  which  he  shall  be  appointed.4  In  Oregon,  the  commissioner 
is  to  provide  a  seal  of  office  with  the  arms  of  the  State  engraved 
in  the  center  thereof,  and  with  the  following  inscription  sur- 
rounding the  same  :  "  Commissioner  for  Oregon, ; ,"  the 

blank  following  the  word  Oregon  to  be  filled  with  the  name  of 
the  State,  Territory,  or  district  for  which  such  commissioner  is 
appointed.5 

In  West  Virginia,  it  is  provided  that  the  seal  shall  have  des- 
ignated on  it  the  name  and  the  words,  (either  at  length,  or  by 
intelligible  abbreviations)  "  Commissioner  for  West  Virginia  in 

,"  the  blank  to  be  filled  up  with  the  name  of  the  State, 

Territory,  or  district  for  which  he  is  appointed.6 

§  166.  Authentication  of  acts. — It  is  a  general  rule  that 
the  acts  of  a  commissioner  require  no  further  authentication  to 
entitle  them  to  be  received  in  evidence  or  recorded  in  the  State 
for  which  he  derives  his  appointment,  than  his  own  signature 
and  official  seal.  So  it  was  held,  in  Johnson  -y.  Cocks,7  that 
depositions  taken  before  a  commissioner  of  deeds,  appointed  by 
the  governor  of  the  State  to  act  in  another  State,  may  be  read 
in  evidence,  without  other  proof  of  the  appointment  and  au- 
thority of  such  commissioner  than  his  own  certificate  and  offi- 
cial seal.  This  general  rule  is  not  followed  in  New  York,  for 
by  a  statute  passed  in  1875,8  it  is  there  provided  that,  before  the 
certificates  of  such  officers  can  be  admitted  in  evidence,  there 

1  Code,  p.  43.  6  Gen.  Laws,  p.  295. 

2  Rev.  Stat.  132.  <*  Code  18G8,  p.  387. 

3  Gen.  Stat.  p.  87T.  "  12  Ark.  672. 

4  2  Rev.  Stat.  (Gth  Ed.)  1142.  8  LaWS  of  1375,  Chap.  136,  Sec.  2. 


1G4  COMMISSIONERS    OF    DEEDS.  §  167 

must  be  produced  a  certificate  by  the  Secretary  of  State  that  he 
is  acquainted  with  the  handwriting  of  such  commissioner,  or 
lias  compared  his  signature  with  the  signature  of  such  commis- 
sioner deposited  in  his  office,  and  has  also  compared  the  impression 
of  the  seal  affixed  to  such  certificate  with  the  impression  of  the 
seal  of  such  commissioner  deposited  in  his  office,  and  that  he 
believes  the  signature  and  impression  of  the  seal  of  the  said 
certificate  to  be  genuine. 

§  167.  Fees. — Commissioners  usually  charge  the  same  fees 
as  arc  allowed  to  notaries  in  the  States  where  they  act.  In 
some  of  our  statutes,  there  is  express  provision  made  for  the 
fees  they  are  entitled  to  demand,  and  in  some  instances  the  pen- 
alty of  removal  is  attached  for  taking  any  more  than  are  thus 
expressly  laid  down.  The  statute  in  California  gives  them  the 
same  fees  as  are  prescribed  for  notaries  public,  which  are :  For 
drawing  an  affidavit,  deposition,  or  other  paper,  for  each  folio, 
thirty  cents;  for  taking  the  acknowledgment  or  proof  of  a 
deed  or  other  instrument,  to  include  the  seal  and  the  writing  of 
the  certificate,  for  the  first  two  signatures  one  dollar  each,  and 
for  each  additional  signature  fifty  cents  ;  for  administering  an 
oath  or  affirmation,  fifty  cents ;  for  every  certificate,  to  include 
writing  the  same  and  the  seal,  one  dollar.1  In  Delaware,  the 
fees  are :  For  taking  an  acknowledgment  of  a  deed,  one  dollar ; 
for  taking  and  certifying  an  affidavit,  fifty  cents.  The  Iowa 
Code  provides  that  they  may  demand  the  same  fees  as  are  al- 
lowed in  the  State  where  they  act.2  In  New  Jersey,  they  are 
allowed  such  fees  asTtre  allowed  by  law  for  like  services  to  of- 
ficers in  that  State,  and  in  case  it  shall  be  made  to  appear  that 
any  such  commissioner  takes  greater  fees,  it  shall  be  the  duty 
of  the  governor  to  remove  him.3  The  statute  of  Ohio  provides 
he  shall  be  entitled  to  charge  and  receive  for  his  services  the 
following  fees  and  no  more :  For  swearing  each  witness,  twenty- 
five  cents ;  for  each  one  hundred  words  contained  in  any  depo- 
sition, certificate,  or  affidavit  taken  before  him,  twenty  cents ; 
for  authenticating,  sealing  up,  and  directing  each  deposition,  one 
dollar  ;  for  authenticating  each  affidavit  sworn  before  him,  one 
dollar ;  for  taking  an  acknowledgment,  two  dollars.4 

1  Pol.  Code,  Sees.  798,  815.  3  Nixon's  Dig.  p.  155. 

2  Code,  r-  43.  <  1  Swan.  &  C.  874. 


§  168  COMMISSIONERS    OF   DEEDS.  165 

§  168.  Appointments  published. — Provision  is  made  in 
some  statutes  for  the  publication  of  the  names  of  commissioners 
appointed,  as  in  California,  where  the  names  of  all  persons  ap- 
pointed are  to  be  published  three  times  in  some  weekly  news- 
paper published  at  the  seat  of  government  of  the  State.1  There 
is  a  similar  provision  in  South  Carolina,  where  notice  of  appoint- 
ment is  to  be  given  in  "  one  or  more  gazettes  of  the  State." 2 
The  statute  in  Iowa  prescribes  that  the  Secretary  of  State  shall 
cause  to  be  published  with  the  session  laws  of  each  general 
assembly,  a  full  and  complete  list  of  all  commissioners  for  Iowa, 
who  are  duly  qualified,  and  whose  commissions  do  not  expire  on 
or  before  the  4th  of  July  of  the  year  in  which  such  publica- 
tion is  made,  which  list  shall  give  the  post-office  address,  date  of 
qualification,  and  date  of  expiration  of  the  commission  of  each 
commissioner.3  And  in  North  Carolina  there  is  a  similar  re- 
quirement, and  the  Secretary  of  State  is  to  cause  to  be  printed 
a  list  in  the  Acts  of  the  General  Assembly.4 


1  Pol.  Code,  Sec.  816.  «  Code,  p.  43. 

2  Rev.  Stat.  p.  113.  <  Ba  tile's  Dig.  p.  251. 


FOEMS. 


[167] 


FORMS  OF  ACKNOWLEDGMENT. 


The  following  forms  have  been  carefully  selected,  and  compared 
with  the  requirements  of  the  statutes  in  each  State.  Where  the 
statutes  have  prescribed  forms,  these  have  been  given,  and  the  fact 
noted.  It  will  be  seen,  on  reference  to  Sec.  49  of  this  work,  that  in 
twenty-two  of  the  States  of  the  Union  married  women  are  required 
to  make  a  private  acknowledgment.  These  States  are :  Arkansas, 
California,  Colorado,  Delaware,  Florida,  Kentucky,  Louisiana, 
Michigan,  Mississippi,  Missouri,  Nevada,  New  Jersey,  New  York, 
North  Carolina,  Ohio,  Pennsylvania,  Rhode  Island,  South  Car- 
olina, Tennessee,  Texas,  Virginia,  and  West  Virginia;  and  forms 
are  given  for  such  acknowledgments  under  these  States.  By  a  re- 
cent statute  in  Alabama,  (Stat.  1872-3,  p.  65)  married  women  are 
required  to  make  a  private  acknowledgment  in  a  conveyance  of  a 
homestead  in  Alabama,  and  the  statute  prescribes  a  form,  which 
is  here  given  under  Alabama. 

In  some  certificates  of  acknowledgment,  the  officer  concludes 
with  the  formal  part — "  In  witness  whereof,  I  have  hereunto  set 
my  hand  and  official  seal,"  etc. ;  but  unless  the  certificate  is  given 
to  be  used  out  of  the  State,  this  formal  part  is  conceived  to  be 
unnecessary. 

With  regard  to  acknowledgments  by  corporations,  we  should 
observe  that,  in  some  of  the  older  States,  there  is  a  form  required, 
as  in  New  York,  which  is  based  on  the  old  rule,  which  attached 
great  importance  to  the  seal,  and  here  the  officer  making  the  ac- 
knowledgment on  behalf  of  the  corporation  is  required  to  give  proof 
of  the  seal.  But  this  is  now  obsolete ;  the  general  practice  is  now 
to  require  an  acknowledgment  simply  by  the  president,  or  other 
agent  of  the  corporation,  on  its  behalf,  the  same  as  any  other  at- 
torney would  acknowledge  for  and  on  behalf  of  his  principal,  as 
for  instance  in  the  form  given  under  California,  which  may  be  con- 
sidered a  general  form  of  this  class.  In  a  few  cases,  the  old  style 
of  acknowledgment  of  a  corporation  is  retained,  and  these  cases 
will  be  found  under  the  States  using  such  forms. 

[169] 


170  ACKNOWLEDGMENTS. 

ALABAMA. 

1.  Form  of  acknowledgment  of  conveyance. 

THE  STATE  OF  ALABAMA,  > 

County.  j 

I  [name  and  style  of  the  officer]  hereby  certify  that ,  whose 

name  is  signed  to  the  foregoing  conveyance,  and  who  is  known  to 
me,  acknowledged  before  me,  on  this  day,  that,  being  informed  of 
the  contents  of  the  conveyance,  he  executed  the  same  voluntarily, 
on  the  day  the  same  bears  date.  Given  under  my  hand  this  — - — 

day  of A.  D.,  18 .  A B . 

[Form  given  in  Rev.  Code,  Sec.  1548.] 

2.  Form  of  probate  of  conveyance. 

THE  STATE  OF  ALABAMA,  ") 
County.  ) 


I  [name  and  style  of  the  officer]  hereby  certify  that 


subscribing  witness  to  the  foregoing  conveyance,  known  to  me,  ap- 
peared before  me  this  day,  and,  being  sworn,  stated  that — ;, 

the  grantor  in  the  conveyance,  voluntarily  executed  the  same  in  his 
presence,  and  in  the  presence  of  the  other  subscribing  witness,  on 
the  day  the  same  bears  date ;  that  he  attested  the  same  in  the  pres- 
ence of  the  grantor  and  of  the  other  witness,  and  that  such  other 
witness  subscribed  his  name  as  a  witness  in  his  presence.  Given 

under  my  hand  this day  of -,  A.  D.  18 . 

[Form  given  in  Rev.  Code,  Sec.  1549.]  A B . 

3.        Acknowledgment  of  wife  in  conveyance  of  homestead. 

STATE  OF  ALABAMA,) 
County  of—,          jss< 

I, ,  judge,  [or  chancellor,  as  the  case  may  be]  do  hereby 

certify,  that  on  the  — —  day  of ,  18 ,  came  before  me  the 

within  named ,  known,  or  made  known  to  me,  to  be  the  wife 

of  the  within  named ,  who,  being  by  me  examined  separate 

and  apart  from  her  husband,  touching  her  signature  to  the  within 

,  acknowledged  that  she  signed  the  same  of  her  own  free  will 

and  accord,  and  without  fear,  constraint,  or  persuasion  of  her  hus- 
band. 

In  witness  whereof,  I  hereunto  set  my  hand,  this  day  of 

,  18 .  A  B,  Judge  [or  Chancellor]. 

[The  statute  provides  that  no  mortgage  or  other  alienation  of  any 
homestead  by  the  owner  thereof,  if  a  married  man,  shall  be  valid, 
without  the  voluntary  signature  and  assent  of  his  wife,  which  vol- 
untary signature  and  assent  must  be  shown  by  the  examination  of 
the  wife,  separate  and  apart  from  her  husband,  touching  the  same, 
had  before  a  Circuit  or  Supreme  Court  judge,  chancellor,  or  judge 
of  probate.] 


ACKNOWLEDGMENTS,  171 


ARIZONA. 

4.  Acknowledgment  by  grantor. 

TERRITORY  OF  ARIZONA,  > 

County  of ,  j 

On  this day  of A.D. ,  personally  appeared  before  me, 

a  notary  public,  [or  judge,  or  officer,  as  the  case  may  be]  in  and  for 
the  said  county,  A  B,  known  to  me  to  be  the  person  described  in 
and  who  executed  the  foregoing  instrument,  who  acknowledged  to 
ine  that  he  executed  the  same  freely  and  voluntarily,  and  for  the 
uses  and  purposes  therein  mentioned.  [Signature  and  title.'] 

[The  above  form  is  prescribed  in  the  Statutes.  Comp.  Laws,  p. 
3G1.  The  form  for  the  private  acknowledgment  of  a  married  wo- 
man is  the  same  as  that  in  use  in  California.  Acknowledgment  in 
the  State  may  be  made  before  some  judge  or  clerk  of  a  Court  hav- 
ing a  seal,  or  some  notary  public  or  justice  of  the  peace  of  the 
proper  county.  Out  of  the  State,  and  within  the  United  States, 
acknowledgments  may  be  made  before  some  judge  or  clerk  of  any 
Court  of  the  United  States,  or  of  any  State  or  Territory  having  a 
seal,  or  by  a  commissioner  of  the  Territory,  but  not  by  a  notary 
public.] 


ARKANSAS. 

5.  Form,  of  acknowledgment  in  Arkansas. 

STATE  OF  ARKANSAS,  ) 
County  of .  ) 

On  this  day  of ,  18 ,  before  me ,  a  justice  of  the 

peace  within  and  for  the  county  of ,  in  the  State  of  Arkansas, 

appeared  in  person ,  to  me  personally  well-known  as  the 

person  whose  name  appears  upon  the  within  and  foregoing  deed  of 
conveyance  as  the  party  grantor,  and  stated  that  he  had  executed 
the  same  for  the  consideration  and  purposes  therein  mentioned  and 
set  forth,  and  I  do  hereby  so  certify. 

In  testimony  whereof,  I  have  hereunto  set  my  hand  as  such 

justice  of  the  peace,  in  the  county  of ,  on  the day  of >, 

18 .  JAMES  C.  HUTCHINS,  J.  P. 

[If  the  grantor  is  unknown  to  the  justice,  instead  of  the  words 
"  to  me  personally  well-known  as  the  person,"  say :  "  who,  being 
unknown  to  me,  was  proven  to  my  satisfaction  to  be  the  identical 

,  whose  name  appears  upon  the  within  and  foregoing  deed 

as  the  party  grantor,  by  the  oath  of and  witnesses,  sw,orn 

and  examined  by  me  as  to  such  identity,"  and  stated,  etc.] 

[Gantt's  Digest,  p.  1059.] 


172  ACKNOWLEDGMENTS. 

ARKANSAS— CONTINUED. 

6.  Acknowledgment  by  husband  and  wife  of  a  joint  deed  for 
the  husband's  land. 

STATE  OP  ARKANSAS, 
County  of . 

On  this day  of  ,  18 ,  before  me, ,  a  justice 

of  the  peace  within  and  for  the  county  of ,  in  the  State  of  Arkan- 

sas,  appeared  in  person ,  to  me  personally  well-known  as 

the  person  whose  name  appears  upon  the  within  and  foregoing 
deed  of  conveyance  as  one  of  the  parties  grantor,  and  stated  that 
he  had  executed  the  same  for  the  consideration  and  purposes  there- 
in mentioned  and  set  forth,  and  I  do  hereby  so  certify. 

And  I  further  certify  that  on  this  day  voluntarily  appeared  be- 
fore me ,  wife  to  the  said ,  to  me  well-known 

to  be  the  person  whose  name  appears  upon  the  within  and  forego- 
ing deed,  and  in  the  absence  of  her  said  husband  declared  that  she 
had,  of  her  own  free  will,  signed  the  relinquishment  of  dower 
therein,  expressed  for  the  purposes  therein  contained  and  set  forth, 
without  compulsion  or  undue  influence  of  her  said  husband. 

In  testimony  whereof,  I  have  hereunto  set  my  hand,  as  such  jus- 
tice of  the  peace,  at  the  county  of ,  on  the day  of  , 

18 .  JOHN  R.  WALKER,  J.  P. 

[Gantt's  Digest,  p.  1060.] 


7.  Acknowledgment  by  husband  and  wife  of  a  joint  deed  for  the 

wife's  land. 

STATE  OF  ARKANSAS,  ) 
County  of .  ) 

On  this day  of ,  18 ,  before  me, ,  a  justice 

of  the  peace  within  an/1  for  the  county  of ,  in  the  State  of  Ar- 
kansas, appeared  in  person ,  to  me  personally  well-known 

as  the  person  whose  name  appears  upon  the  within  and  foregoing 
deed  of  conveyance  as  one  of  the  parties  grantor,  and  stated  that 
he  had  executed  the  same  for  the  consideration  and  purposes  there- 
in mentioned  and  set  forth,  and  I  do  hereby  so  certify. 

And  I  further  certify  that  on  this  day  voluntarily  appeared  be- 
fore me ,  wife  to  the  said ,  to  me  well-known 

to  be  the  person  whose  name  appears  upon  the  within  and  forego- 
ing deed,  and  in  the  absence  of  her  said  husband  declared  that  she 
had,  of  her  own  free  will,  executed  the  same  for  the  purposes 
therein  contained  and  set  forth,  without  compulsion  or  undue  in- 
fluence of  her  said  husband. 

In  testimony  whereof,  I  have  hereunto  set  my  hand,  as  such  jus- 
tice of  the  peace,  in  the  county  of  ,  on  the day  of  -    — , 

18 .  JOHN  R.  WALKER,  J.  P. 

[Gantt's  Digest,  p.  1060.] 


ACKNOWLEDGMENTS.  173 

ARKANSAS— CONTINUED. 

8.  Proof  of  deed  by  subscribing  witness. 

STATE  or  ABKANSAS,  ) 
County  of  .  ) 

Be  it  remembered,  that  on  this day  of  ,  18 ,  before 

me, ,  a  justice  of  the  peace  in  and  for  the  county  afore- 
said, personally  appeared ,  one  of  the  subscribing  wit- 
nesses to  the  foregoing  deed,  to  me  personally  well-known,  who, 
being  by  me  first  duly  sworn,  on  his  oath  stated,  that  he  saw 

— ,  grantor  in  said  deed,  subscribe  said  deed  on  the  day  of  its 
date,  [or,  that  that  the  said  : ,  grantor  in  said  deed,  ac- 
knowledged in  his  presence,  on  the day  of  ,  18 ,  that 

he  had  subscribed  and  executed  said  deed]  for  the  uses  and  pur- 
poses and  consideration  therein  expressed,  and  that  he  and 

— ,  the  other  subscribing  witness,  subscribed  the  same  as  at- 
testing witnesses  at  the  request  of  said  grantor. 

In  testimony  whereof,  I  have  hereunto  set  my  hand,  as   such 

justice  of  the  peace,  at  the  county  aforesaid,  this day  of , 

18 .  JAMES  C.  HUTCHINS,  J.  P. 

[Gantt's  Digest,  p.  1059.] 

[The  preceding  forms  are  given  in  reference  to  an  acknowledg- 
ment before  a  justice  of  the  peace ;  but  they  are  equally  adapted 
to  other  officers,  as  a  notary  public,  or  commissioner  of  deeds.] 


CALIFORNIA. 

9.  Acknowledgment  by  grantor, 

STATE  OF  CALIFORNIA,  ^ 
County  of ,  }  ss* 

On  this day  of  ,  in  the  year ,  before  me,  [here  in-' 

sert  the  name  and  quality  of  the  officer]  personally  appeai'ed 

,  known  to  me  [or  proved  to  me  on  the  oath  of ]  to  be 

the  person  whose  name  is  subscribed  to  the  within  instrument,  and 
acknowledged  to  me  that  he  [or  they]  executed  the  same. 

[Form  given  in  Civil  Code,  Sec.  1189.]  A B . 

10.  Acknowledgment  by  a  corporation. 

STATE   OF  CALIFORNIA,  "> 
County  of ,  j  ss' 

On  this day  of  ,  in  the  year ,  before  me,  [here  in  • 

sert  the  name  and  quality  of  the  officer]  personally  appeared  — ~- 

— ,  known  to  me  [or  proved  to  me  on  the  oath  of ]  to 

be  the  president  [or  the  secretary]  of  the  corporation  that  executed 
the  within  instrument,  and  acknowledged  to  me  that  such  corpora- 
tion executed  the  same.  A B . 

[Form  given  in  Civil  Code,  Sec.  1190.] 


174  ACKNOWLEDGMENTS. 

CALIFORNIA— CONTINUED. 
11.  Acknowledgment  by  a  married  woman. 

STATE  OF  CALIFORNIA,") 
County  of  -,  ]"  si 

On  this day  of -,  in  the  year ,  before  me  [here  in- 
sert the  name  and  quality  of  the  officer"]  personally  appeared 

,  known  to  to  me  [or  proved  to  me  on  the  oath  of 

to  be  the  person  whose  name  is  subscribed  to  the  within  instru- 
ment, described  as  a  married  wotifanf  and  upon  an  examination, 
without  the  hearing  of  her  )«isband,  I  made  her  acquainted  with 
the  contents  of  the  instrument,  and  thereupon  she  acknowledged 
that  she  executed  th«  same,  and  that  she  does  not  wish  to  retract 
such  execution..  A B . 

[Form  given  in  Civil  Code,  Sec.  1191.] 


12.  Acknowledgment  when  wife  joins  in  deed. 

STATE  OF  CALIFORNIA,  ) 
County  of  ,  ]" Si 

On  this  day  of  ,  A.  D.  one  thousand  eight  hundred  and 

seventy ,  before  me  [here  insert  the  name  and  quality  of  thi 

officer']  personally  appeared ,  and ,  his  wife, 

whose  names  are  subscribed  to  the  annexed  instrument,  known  to 
me  to  be  the  same  persons  described  in  and  who  executed  the  said 
instrument,  who  each  of  them  acknowledged  to  me  that  they  re- 
spectively executed  the  same. 

And  the  said ,  describecL  as  a  married  woman  and  the 

wife  of/ the  said ,  upon  Examination,  without  the  hearing 

of  her  husband,  was  made  acquainted  by  me  with  the  contents  of 
said  instrument,  and  thereupon  she  acknowledged  to  me  that  she 
executed  the  same,  and  that  she  does  not  wish  to  retract  such  exe- 
cution.. [Signature  and  title.'] 

[If  taken  without  tlla  State,  add :  "  In  testimony  whereof,  I  have 
hereunto  set  my  hand  and  affixed  my  official  seal,  the  day  and  year 
first  above  written."  By  Sec.  1188,  Civil  Code,  amended  1874,  a 
certificate  may  be  either  annexed  to  or  written  on  the  instrument.] 


13. 


Acknowledgment  by  grantor  -under  power  of  attorney. 

STATE  OF  CALIFORNIA,") 
County  of  ,  |.8S 

On  this day  of  ,  A.  D.  one  thousand  eight  hundred  and 

seventy  ,  before  me, ,  a in  and  for  the  said  - 

county,  personally  appeared ,  known  to  me  [or  proved  to  me  on 

the  oath  of  ]  to  be  the  same  person  whose  name  is  subscribed 

to  the  within   instrument  as   the  attorney  in  fact  of  ,  and 

acknowledged  to  me  that  he  subscribed  the  name  of 

thereto  as  principal,  and  his  own  name  as  attorney  in  fact. 

[Form  given  in  Civil  Code,  Sec.  1192.]       [Signature  and  title.'] 


ACKNOWLEDGMENTS.  175 

CALIFORNIA—  CONTINUED. 

14.          Proof  by  subscribing  witness  known  to  the  officer. 
STATE  OF  CALIFORNIA, 


gg 
County  of  -  ,  ) 

On  this  -  day  of  -  ,  18  -  ,  before  me  [here  insert  the 
name  and  quality  of  the  officer]  personally  appeared  --  , 
personally  known  to  me  to  be  the  same  person  whose  name  is  sub- 
scribed to  the  annexed  instrument  as  a  witness  thereto,  who,  being 
by  me  duly  sworn,  deposed  and  said  :  That  he  resided  at  -  ,  in  the 
county  of  -  ,  State  of*  -  ;  that  he  was  present  and  saw  -  • 
-  ,  known  to  him  to  be  the  same  person  described  in  and  who 
executed  the  annexed  instrument  as  a  party  thereto,  sign,  seal,  and 
deliver  the  same,  and  that  the  said  --  acknowledged  in  the 
presence  of  deponent  that  he  executed  the  same  freely  and  volun- 
tarily, and  for  the  uses  and  purposes  therein  mentioned,  and.  that 
he,  the  deponent,  thereupon  signed  his  name  as  a  subscribing  wit- 
ness thereto.  A  -  B  -  . 

[By  the  Civil  Code,  Sec.  1195:  "Proof  of  the  execution  of  an 
instrument,  when  not  acknowledged,  may  be  made  :  1st.  By  the 
party  executing  it,  or  either  of  them  ;  or  2d.  By  a  subscribing  wit- 
ness ;  or  3d.  By  other  witnesses  "  in  certain  cases.] 


COLORADO. 

15.  Acknowledgment  by  grantor. 

STATE  OF  COLORADO,  ) 

County  of ,  j 

Be  it  known,  that  on  this day  of ,  18 ,  before  me, 

-,  personally  came  A  B,  to  me  personally  known  as  the  same 


person  described  in  and  who  executed  the  foregoing  instrument, 
and  acknowledged  the  execution  thereof  to  be  his  free  act  and 
deed,  for  the  uses  and  purposes  therein  mentioned.* 

Witness,  etc.  [Signature  and  title.] 


16.  The  same  where  the  wife  joins. 

[Insert  in  tlie  preceding  form  at  the  */]  And  at  the  same  time 
personally  appeared  before  me  the  within  named  C  B,  wife  of  the 
said  A  B,  who,  being  by  me  privately  examined,  separate  and  apart 
from  her  husband,  acknowledged  that  she  signed,  sealed,  and  de- 
livered the  said  instrument  as  her  voluntary  act  and  deed,  freely 
and  without  any  threat,  compulsion,  or  fear  of  her  said  husband. 


176  ACKNOWLEDGMENTS. 

CONNECTICUT. 
17.  Acknowledgment  by  grantor. 

STATE  OF  CONNECTICUT,  I 

County  of ,  j  Si 

On  this day  of ,  18 ,  personally  appeared  A  B,  signer 

and  sealer  of  the  foregoing  instrument,  and  acknowledged  the  same 
to  be  his  free  act  and  deed,  before  me.         [/Signature  and  title.'] 

[In  Connecticut,  two  witnesses  are  required ;  but  by  their  statute 
it  is  provided  that  deeds  executed  in  another  State  or  Territory 
may  be  executed  and  acknowledged  there,  in  accordance  with  the 
laws  thereof.  But  both  execution  and  acknowledgment  must  con- 
form :  thus,  execution  in  New  York  with  but  one  witness,  and  ac- 
knowledgment there  before  a  Connecticut  commissioner,  is  insuffi- 
cient. Farrell  Foundry  v.  Dart,  26  Conn.  376.] 


18.  Acknowledgment  of  a  deed  by  a  corporation. 

STATE  OF  CONNECTICUT,") 

County  of ,  J  Si 

On  this day  of ,  18 ,  personally  appeared  A  B,  who, 

being  duly  authoi'ized  and  appointed  by  vote  of  the  directors  of 
the  said,  [naming  the  corporation^  the  agent  of  said  company,  for 
the  purpose  of  executing  the  foregoing  instrument,  acknowledged 
that  he  executed  the  same  as  the  free  act  and  deed  of  the  said  cor- 
poration, and  as  his  own  free  act  and  deed,  before  me. 

[/Signature  and  title."] 


DAKOTA. 
19.  Acknowledgment  by  grantor. 

TERRITORY  OF  DAKOTA, 
County  of 


TA,| 
I,  th 


Be  it  remembered,  that   on  this   day  of   ,   18- 


before  me,  the  subscriber,  personally  came  A  B,  to  me  personally 
known  as  the  same  person  described  in  and  who  executed  the  fore- 
going instrument  of  writing,  and  acknowledged  the  execution 
thereof  to  be  his  free  act  and  deed,  for  the  uses  and  purposes  there- 
in mentioned. 

In  witness  whereof,  I  have,  this day  of  ,  18 ,  made 

this  certificate,  and  hereunto  set  my  hand. 

[Signature  and  title."] 

[A  private  acknowledgment  is  only  required  when  the  wife  con- 
veys property  in  her  own  right ;  and  the  form  is  similar  to  that 
previously  given  for  Colorado.  Two  witnesses  are  necessary  to 


ACKNOWLEDGMENTS.  177 

DAKOTA— CONTINUED. 

the  conveyance ;  but  deeds  executed  without  the*  Territory  and 
within  the  United  States  may  be  executed  according  to  the  laws  of 
the  place  of  execution,  and  may  be  acknowledged  before  any  officer 
authorized  by  the  laws  of  the  place  to  take  acknowledgments. 
Laws  of  Dakota,  (1862)  p.  269.  When  a  deed  is  executed  out  of 
the  State,  a  certificate  must  accompany  it  to  show  it  is  executed  ac- 
cording to  the  law  of  the  place.] 


DELAWARE. 

20.  Acknowledgment  by  husband  and  wife. 

THE  STATE  OF  DELAWAKE,  ) 
County  of ,  j 

Be  it  remembered,  that  on  the day  of ,  in  the  year  of  our 

Lord  one  thousand  eight  hundred  and ,  personally  came  before 

the  subscribers,  two  of  the  justices  of  the  peace  for  county 

aforesaid, and ,  his  wife,  parties  to  this  inden- 
ture, known  to  us  personally  [or  proved  on  the  oath  of ] 

to  be  such,  and  severally  acknowledged  said  indenture  to  be  their 

act  and  deed  respectively  ;  and  that  the  said ,  being  at  the 

same  time  privately  examined  by  us,  apart  from  her  husband,  ac- 
knowledged that  she  executed  the  said  indenture  willingly,  without 
compulsion,  or  threats,  or  fear  of  her  husband's  displeasure. 

Witness  our  hands  the  day  and  year  aforesaid. 

[Signatures  and  titles."] 

[This  form  is  prescribed  in  the  Code,  p.  502.  If  the  acknowl- 
edgment be  made  by  a  single  grantor,  or  a  private  examination 
only  is  taken,  the  form  will  be  varied  to  suit  each  case.  Where  an 
acknowledgment  is  taken  in  a  Court,  the  authentication  will  be 
under  the  hand  or  seal  of  the  clerk  or  prothonotary ;  if  before  the 
chancellor  or  other  officer,  it  will  be  under  his  hand.] 

21.  Acknowledgment  of  the  deed  of  a  corporation. 

STATE  OF  DELAWARE,  \ 

County  of ,  j 

Be  it  remembered,  that  on  the day  of ,  in  the  year 

before  us ,  [or  me,  as  the  case  may  be]  came  A  B,  the 


president  of  the  Bank  of  ,  to  us  personally  known,  and  who, 

being  by  us  duly  sworn,  deposes  and  says :   That  he  resides  in  the 

village  of ,  in  said  county ;   that  he  is  president  of  the  Bank 

of ;  that  the  seal  affixed  to  the  within  indenture  is  the  corpo- 
rate seal  of  the  president,  directors,  and  company  of  the  said  bank, 
and  was  affixed  to  the  said  indenture  by  order  of  said  directors,  for 
the  uses  therein  expressed;  and  that  he  by  like  order  did  subscribe 
his  name  thereto,  as  president  of  said  bank. 

NOTARIES 12.  [Signatures  and  titles."] 


178  ACKNOWLEDGMENTS. 

DISTRICT  OF  COLUMBIA. 

22.  Acknowledgment  by  grantor. 

STATE  OF 


County  of  -  ,  j 

I,  A  B,  a  justice  of  the  peace,  [or  other  prescribed  officer,  giving 
his  title]  in  arid  for  the  county  [or  city  or  parish  or  district]  afore- 
said, in  the  State  [or  Territory  or  district]  of  -  ,  do  hereby  cer- 
tify that  C  D,  a  party,  [or  C  D  and  E  F,  etc.,  parties]  to  a 
certain  deed  bearing  date  on  the  -  day  of  -  ,  and  hereto  an- 
nexed, personally  appeared  before  me  in  the  county  [or  city,  etc.,] 
aforesaid,  the  said  C  D  [or  C  D  and  E  F,  etc.,]  being  "person- 
ally well-known  to  me  as  [or  proved  by  the  oaths  of  credible  wit- 
nesses before  me  to  be]  the  person  [or  persons]  who  executed  the  said 
deed,  and  acknowledged  the  same  to  be  his  [her  or  their]  act  and 
deed.  Given  under  my  hand  and  seal  this  -  day  of  -  . 

A.  B.  [SEAL.] 


23.  Acknowledgment  by  married  woman. 

STATE  OF ,  ") 

County  of ,  ]" si 

I,  A  B,  a  justice  of  the  peace,  [or  other  prescribed  officer,  giving 
title]  in  the  county  [or  city,  etc.]  aforesaid,  in  the  State  [or  Terri- 
tory, etc.]  of ,  do  hereby  certify  that  C  D,  the  wife  of  E  F, 

party  to  a  certain  deed  bearing  date  on  the day  of  -  — ,  and 

hereunto  annexed,  personally  appeared  before  me  in  the  county  [or 
city,  etc.]  aforesaid,  the  said  C  D  being  well  known  to  me  [or 
proved  by  the  oaths  of  credible  witnesses  before  me  to  be]  the  person 
who  executed  the  said  deed ;  and  being  by  me  examined  privily  and 
apart  from  her  husband,  and  having  the  deed  aforesaid  fully  ex- 
plained to  her,  the  said  E  F  acknowledged  the  same  to  be  her  act 
and  deed,  and  declared  that  she  had  willingly  signed,  sealed,  and 
delivered  the  same,  and  that  she  wished  not  to  retract  it.  Given 
under  my  hand  and  seal  this day  of  .  A.  B.  [SEAL.] 

[These  forms  are  prescribed  in  the  Statute,  Rev.  Stat.  p.  52. 
The  statute  provides  that  acknowledgments  of  deeds  may  be 
made  before  any  of  the  following  officers  of  the  State,  district, 
county,  or  Territory  within  the  United  States,  in  which  the  person 
making  the  deed  may  be :  1st.  Before  any  judge  of  a  Court  of 
Record  or  Law.  2d.  Before  any  chancellor  of  a  btate.  3d.  Before 
any  judge  of  the  Supreme,  Circuit,  District  or  Territorial  Courts  of 
the  United  States.  4th.  Before  any  justice  of  the  peace.  5th. 
Before  any  notary  public.  6th.  Before  any  commissioner  of  the 
Circuit  Court  of  the  district  appointed  for  that  purpose. 

When  made  beyond  the  limits  of  the  district  within  the  United 
States,  a  certificate  of  the  official  character  of  the  officer,  under  the 
official  seal  of  a  register,  clerk,  or  other  public  officer  having  cogni- 
zance of  the  fact,  must  be  attached.] 


ACKNOWLEDGMENTS.  179 

FLORIDA. 

24.  Acknowledgment  by  husband  and  wife. 

STATE  OF  FLORIDA,  ) 

County  of ,         ) 

On  this day  of  ,  18 ,  before  me  [name  and  title  of 

officer]  personally  appeared  A  B,  and  C  B,  his  wife,  to  me  known 
to  be  the  persons  described  in  and  who  executed  the  foregoing  in- 
strument, and  severally  acknowledged  the  execution  thereof  to  be 
their  free  act  and  deed,  for  the  uses  and  purposes  therein  men- 
tioned. And  the  said  C  B,  the  wife  of  said  A  B,  on  a  private  ex- 
amination by  me,  separate  and  apart  from  her  husband,  did  ac- 
knowledge that  the  said  deed  of  renunciation  and  relinquishment 
of  dower,  and  the  said  acknowledgment,  was  made  freely  and  vol- 
untarily, and  without  any  compulsion,  constraint,  apprehension,  or 
fear  of  or  from  her  said  husband.  [Signature  and  title.  \ 

25.  Relinquishment  of  dower  when  taken  out  of  the  State. 

STATE  OF  ,  ) 

•») 


City  and  County  of 

Be  it  remembered,  that  on  this day  of  ,  in  the  year  of 

our  Lord  18 ,  before  me,  the  clerk  of  the Court,  for  the 

[city  or]  county  of  ,  and  State  of  ,  which  said  Court  is  a 

Court  of  Record,  personally  came ,  wife  of ,  to 

me  well-known  as  the  person  described  in  and  who  executed  the 
foregoing  deed  of  conveyance,  [as  the  case  may  bej  and  acknowl- 
edged that  she  made  herself  a  party  to  and  executed  the  same  for 
the  purpose  of  relinquishing  her  dower  in  and  to  the  lands  and 
tenements  therein  described ;  and  said ,  on  a  private  ex- 
amination, taken  and  made  before  me,  in  the  presence  of  the  hon- 
orable   ,  judge  of  our  said  Court,  separately  and  apart  from 

her  said  husband,  acknowledged  and  says  that  the  said  relinquish- 
ment and  renunciation  of  dower  was  and  is  made  freely  and  vol- 
untarily, and  without  any  compulsion  or  constraint,  apprehension 

or  fear,  of  or  from  her  said  husband,  the  said ,  to  which 

acknowledgment  the  said has,  in  my  presence,  and  in  the 

presence  of  the  said ,  judge  of  our  said  Court,  this  day 

set  her  hand  and  seal. 

Witness  my  hand  and  the  seal  of  our  said  Court  at ,  in , 

this  the  day  and  year  first  above  written. 

[Seal  of  L:ourt.~\  [Signature  of  wife.]     [SEAL.] 

A  B,  CLERK,  etc. 

[The  statute  provides  that  when  any  relinquishment  of  dower 
shall  be  made  out  of  the  State,  the  acknowledgment  shall,  if  made 
in  the  United  States,  be  taken  by  the  clerk  or  prothonotary  of 
some  Court  of  Record  in  the  State,  Territory,  or  district  in  which  it 
shall  be  made,  in  the  presence  of  the  judge  or  justice,  or  of  one  of 


180  ACKNOWLEDGMENTS. 

FLORIDA— CONTINUED. 

the  judges  or  justices  of  the  Court  to  which  the  clerk  or  prttho- 
notary  who  takes  the  acknowledgment  shall  belong,  and  such  ac- 
knowledgment so  taken  shall  be  certified  by  the  clerk  or  prothono- 
tary  taking  it  under  the  seal  of  the  Court,  if  it  have  one,  and  if  it 
have  none,  it  shall  be  stated  in  the  said  certificate  ;  and  the  taking 
of  the  said  acknowledgment  and  the  certificate  of  the  clerk  or 
prothonotary  shall  be  authenticated  under  the  hand  of  the  judge 
or  justice  present  at  the  making  thereof,  by  his  certifying  that  the 
said  acknowledgment  was  made  in  his  presence,  and  that  the  per- 
son acting  as  clerk  or  prothonotary  was,  at  the  time  of  his  so  doing, 
the  clerk  or  prothonotary  of  the  Court  of  which  he  is  judge  or 
justice.  Bush's  Dig.  p.  150.] 


26.  Acknowledgment  without  State,  grantor  not  personally  known. 

STATE  OF  

County  of 

On  this day  of ,  18 ,  before  me,  I  K,  a  commissioner 

duly  appointed  and  authorized  by  the  executive  authority,  and  un- 
der the  laws  of  the  State  of  Florida,  to  take  within  the  State  of 
proof  and  acknowledgment  of  deeds,  etc.,  to  be  used  and  re- 
corded in  said  State  of  Florida,  personally  appeared  A  B,  who 
was  proven  to  me  satisfactorily  to  be  the  person  described  in  and 
who  executed  the  foregoing  instrument,  by  the  oath  of  M  N,  who, 
being  by  me  duly  sworn,  did  depose  and  say :  That  he  resided  in 

in  the  county  of  ;  that  he  was  acquainted  with  the  said 

A  B,  and  that  he  knew  him  to  be  the  same  person  described  in 
and  who  executed  the  within  conveyance ;  and  thereupon  the  said 
A  B  acknowledged  the  execution  thereof  to  be  his  free  act  and 
deed  for  the  uses  and  purposes  therein  mentioned. 

In  witness  whereof,  I  have  hereunto  set  my  hand  and  affixed  my 

seal  of  office,  at ,  the  day  and  year  first  above  written. 

[Signaturejfind  title."] 


GEORGIA. 
27.  Acknowledgment  by  grantor. 

STATE  OF  GEORGIA,  ) 

County  of ,         }  Si 

Be  it  remembered,  that  on  this day  of  ,  one  thousand 

eight  hundred   and  ,  before   me,  the  undersigned,  [naming 

officer  and  title"]  personally  came  A  B,  to  me  known  to  be  the 
person  described  in  and  who  executed  the  foregoing  [or  within] 
conveyance,  and  acknowledged  the  same  to  be  his  free  act  and 
-deed.  [Signature  and  title.'] 


ACKNOWLEDGMENTS.  181 

GEORGIA— CONTINUED. 

[Power  in  Georgia  is  only  in  the  lands  of  which  the  husband  was 
seized  and  possessed  at  the  time  of  his  death,  as  in  Connecticut : 
Georgia  Code,  (1873)  Sec.  1763  ;  or  to  which  the  husband  obtained 
title  in  right  of  his  wife,  and  in  such  the  wife  will  have  to  join  in 
the  deed  to  relinquish  dower,  and  the  form  may  be  the  following :] 

28.  denunciation  of  dower. 

STATE  OF  GEORGIA,) 

County  of ,          ) 

I, ,  the  wife  of ,  do  declare  that  I  have,  freely  and  with- 
out compulsion,  signed,  sealed,  and  delivered  the  above  instrument 
of  writing,  passed  between and  ,  and  I  do  hereby  re- 
nounce all  title  or  claim  of  dower  that  I  might  claim  or  be  entitled 

to  after  the  death  of  ,  my  said  husband,  to  or  out  of  the  lands 

or  tenements  therein  conveyed.  [Signature  of  wife.] 

29.  Acknowledgment  of  husband  and  wife. 

STATE  OP  GEORGIA,) 

County  of ,         j  ss> 

Be  it  remembered,  that  on  this day  of ,  A.  D. ,  before 

•,  and 


,  his  wife,  to  me  personally  known  to  be  the  individuals 
named  in  and  who  executed  the  foregoing  deed,  for  the  purposes 

therein  named  and  mentioned  ;  and  the  said ,  being  duly 

examined  by  me,  separately  and  apart  from  her  said  husband,  did 
declare  that  she  did,  freely  and  voluntarily,  and  without  compulsion 
from  her  said  husband,  sign,  seal,  and  deliver  the  said  deed  for  the 
purposes  therein  mentioned,  with  intention  thereby  to  renounce, 
give  up,  and  forever  quit-claim  her  right  of  dower  and  thirds,  and 
all  her  other  interest  of  and  to  the  lands  and  tenements  therein 
mentioned  and  conveyed.  [Signature  and  title.'] 


IDAHO. 

30.  Acknowledgment  by  grantor ',  prescribed. 

TERRITORY  OF  IDAHO,  ") 

County  of ,  j  6S* 

On  this day  of ,  A.  D. 

fore  me,  [name  and  style  of  officer]  A  B,  personally"  known  to  me 
to  be  the  person  described  in  and  who  executed  the  foregoing  in- 
strument, and  who  acknowledged  to  me  that  he  executed  the  same 
freely  and  voluntarily,  for  the  purposes  therein  mentioned. 

[Signature  and  title.] 

[For  form  for  private  acknowledgment  of  wife,  adopt  form  given 
for  California.] 


182  ACKNOWLEDGMENTS. 

ILLINOIS. 
31.  Acknowledgment  by  grantors. 

STATE  OF  ILLINOIS,  ") 
County  of ,         j  Si 

I,  [here  give  name  of  officer  and  his  official  title]  do  hereby  cer- 
tify that  [name  of  grantor,  and,  if  acknowledged  by  icife,  her  name, 
and  add  "  his  wife"]  personally  known  to  me  to  be  the  same  person 
whose  name  is  [or  are]  subscribed  to  the  foregoing  instrument, 
appeared  before  me  this  day  in  person,  and  acknowledged  that  he 
[she  or  they]  signed,  sealed,  and  delivered  the  said  instrument,  as 
his  [her  or  their]  free  and  voluntary  act,  for  the  uses  and  purposes 
therein  set  forth. 

Given  under  my  hand  and  [private  or  official,  as  the  case  may  be] 
seal,  this  [day  of  the  month]  day  of  [month],  A.  D.  [year]. 

[Signature  of  officer]  [Seal.] 

[This  is  the  form  prescribed  in  the  statute.  It  is  provided  that 
a  deed  executed  without  the  State,  and  within  the  United  States, 
may  be  executed  and  acknowledged  in  accordance  with  the  laws  of 
the  place  of  execution,  if  certified  by  a  clerk  of  a  Court  of  Record 
to  be  so  done.  But  it  must  conform  wholly  to  the  laws  of  one 
State,  or  to  those  of  the  other.  Rev.  Stat.  1874,  p.  277.  It  seems 
that  conformity  may  be  shown  by  producing  a  copy  of  the  laws  of 
a  State,  as  well  as  by  supplying  a  certificate.  Hurt  v.  McCartney, 
18  111.  129:  A  certificate  by  a  notary  of  another  State  should  be 
under  his  official  seal.  Booth  v.  Cook,  20  111.  129.] 


INDIANA. 

[There  is  no  occasion  for  a  private  acknowledgment  by  the  wife, 
and  the  ordinary  form  of  acknowledgment  will  suffice,  but  the 
following  form,  much  simplified,  is  given  by  statute  :] 


32.  Acknowledgment  by  grantor. 

STATE  OF  INDIANA,  ) 

County  of ,         j 

Before  me,  M  N,  a  judge  [or  justice,  as  the  case  may  be]  this 
day  of ,  18 ,  A  B  acknowledged  the  execution  of  the 


tf  '  O 

annexed  [or  within]  deed  [or  mortgage,  as  the  case  may  be]. 
[  Official  seal,  if  any]  [/Signature  and  title] 


ACKNOWLEDGMENTS.  183 


IOWA. 
33.  Acknowledgment  by  grantor. 

STATE  OF  IOWA, 
County  of 


ss. 


This   is  to  certify,  that  on  this day  of  ,  A.  D.  18- 


before  me  [name  and  style  of  officer]  *  personally  appeared  A  B, 
personally  known  to  me  to  be  the  identical  person  whose  name  is 
affixed  to  the  foregoing  deed  [or  other  instrument]  as  grantor  there- 
in, named  and  acknowledged  the  same  to  be  his  voluntary  act  and 
deed,  for  the  uses  and  purposes  therein  mentioned. 

In  witness  whereof,  I  have  hereunto  set  my  hand  [and  the  seal 
of  my  office]  on  the  day  and  year  first  above  written. 

[  Official  seal,  if  am/.]  [Signature  and  title."] 

34.  Where  parties  are  not  personally  known. 

[As  in  previous  form  after  * :]  personally  came  A  B  and  C  D, 
both  proven  to  me  satisfactorily  to  be  the  same  identical  persons 
described  in  and  who  executed  the  within  conveyance,  by  the  oath 
of  M  N,  [witness  thereto]  who,  being  by  me  duly  sworn,  did  de- 
pose and  say:  That  he  resided  in ,  in  the  county  of ;  that  he 

was  acquainted  with  the  said  A  B  and  C  D  ;  that  he  knew  them  to 
be  the  same  persons  described  in  and  who  executed  the  within 
conveyance ;  and  thereupon  they  severally  acknowledged,  before 
me,  that  they  executed  the  same  as  their  voluntary  act  and  deed 
for  the  uses  and  purposes  therein  mentioned. 

In  witness,  etc. 


KANSAS. 
[Follow  forms  for  Iowa.] 


KENTUCKY. 

35.  Acknowledgment  within  the  State. 

STATE  OF  KENTUCKY, 


gg 
County  of  -  ,  \ 

Be  it  remembered,  on  this  -  day  of  -  ,  18  —  ,  before  me,  M 
N,  [county  clerk  of  the  County  Court  of  said  county]  at  -  ,  per- 
sonally came  A  B,  [and  C  B,  his  wife]  to  me  known  to  be  the 
person  [or  persons]  described  in  and  who  executed  the  within 
deed,  and  [severally]  acknowledged  that  he  [or  they]  executed  the 
same,  for  the  uses  and  purposes  therein  mentioned. 

Given  under  my  hand  and  seal  of  office.  M  -  N  -  . 


184  ACKNOWLEDGMENTS. 

KENTUCKY— CONTINUED. 

[A  certificate  of  acknowledgment  taken  within  the  State  need  not 
8et  forth  the  private  examination ;  but  such  private  examination  is 
necessary  out  of  the  State,  and  then  the  certificate  will  be  in  the 
following  form,  which  is  prescribed  by  statute :] 


3t>.  A  cknowledgment  taken  without  the  State. 

COMMONWEALTH  [or  kingdom]  OF  ,  \ 

County  [or  town,  or  city,  or  department,  etc.] ) 

I,  A  B,  [here  give  his  title]  do  certify  that  this  instrument  of 
writing  from  C  I)  and  wife,  E  F,  [or  from  E  F,  wife  of  C  D] 
was  this  day  produced  to  me  by  the  parties,  and  the  contents  and 
effect  of  the  instrument  being  explained  to  the  said  E  F  by  me, 
separately  and  apart  from  her  husband,  she  thereupon  declared  that 
she  did  freely  and  voluntarily  execute  and  deliver  the  same  to  be 
her  act  and  deed,  and  consented  that  the  same  might  be  recorded. 

Given  under  my  hand  and  seal  of  office.  A B 


LOUISIANA. 

37.  Authentic  act  of  sale  and  wife's  renunciation. 

STATE  OF  LOUISIANA,  ") 
County  of  , 

J3e  it  remembered,  that  on  this  day  of  ,  A.  D.  18 , 

before  me,  M  N,  a  commissioner  of  the  State  of  Louisiana,  duly 
commissioned  and  appointed  by  the  governor  thereof,  for  the  said 

county  and  State  of  ,  personally  came  and  appeared  A  B,  at 

present  residing  at ,  in  gaid  county,  who  declared  [here  will  fol- 
low the  conveyance,  e.  g.,  thus :]  that  in  consideration  of  -  — ,  to 
him  in  hand  paid  by  the  said  Y  Z,  the  receipt  whereof  is  hereby 
acknowledged,  he,  the  said  appearer,  does  hereby  grant,  bargain, 
sell,  convey,  and  confirm  unto  Y  Z,  of  ,  all  [here  insert  de- 
scription of  the  premises]  TO  HAVE  AND  TO  HOLD  the  same  unto  the 
said  Y  Z,  his  heirs  and  assigns  forever. 

And  now  personally  appeared  Mistress  C  B,  of  lawful  age  and 
wife  of  said  A  B,  who  did  declare  unto  me  that  it  is  her  wish  and 
intention  to  release,  in  favor  of  the  said  Y  Z,  the  real  estate  above 
referred  to  from  the  matrimonial,  dotal,  paraphernal,  and  the  other 
rights,  and  from  any  claims,  mortgages,  or  privileges  to  which  she 
is  or  may  be  entitled,  whether  by  virtue  of  her  marriage  with  her 
said  husband,  or  otherwise.  Whereupon,  I,  the  said  commissioner, 
did  inform  the  said  wife,  verbally,  apart  and  out  of  the  presence  of 
her  said  husband,  and  before  receiving  her  signature,  that  she  had, 
by  the  laws  of  the  State  of  Louisiana,  a  legal  mortgage  on  the 
property  of  her  said  husband :  first,  for  the  restitution  of  her 
dowry,  and  for  the  reinvestment  of  the  dotal  property  sold  by  her 


ACKNOWLEDGMENTS.  185 

LOUISIANA— CONTINUED. 

husband,  and  which  she  brought  in  marriage,  reckoning  from  the 
•  celebration  of  the  marriage ;  second,  for  the  restitution  and  rein- 
vestment of  the  dotal  property  by  her  acquired  since  marriage, 
whether  by  succession  or  donation,  from  the  day  the  succession 
was  opened,  or  the  succession  perfected ;  thirdly,  for  nuptial  pres- 
ents ;  fourthly,  for  debts  by  her  contracted  with  her  said  hus- 
band; and  fifthly,  for  the  amount  of  her  paraphernal  property 
alienated  by  her,  and  received  by  her  said  husbandj  or  otherwise 
disposed  of  for  the  individual  interest  of  her  said  husband. 

And  the  said  wife  did  thereupon  declare  unto  me,  commissioner, 
that  she  was  fully  aware  of  and  acquainted  with  the  nature  and 
extent  of  the  matrimonial,  dotal,  paraphernal,  and  other  rights  and 
privileges  thus  secured  to  her  by  the  laws  of  the  said  State  of 
Louisiana,  in  the  property  of  her  said  husband;  and  that,  availing 
herself  of  the  rights  secured  to  her  by  the  second  section  of  an  act 
passed  by  the  legislature  of  the  said  State  of  Louisiana,  authorizing 
wives  to  make  valid  renunciation,  etc.,  approved  on  the  27th  day 
of  March,  1835,  she,  nevertheless,  did  persist  in  her  intention  of 
renouncing  not  only  all  the  rights,  claims,  and  privileges  herein- 
before enumerated  and  described,  but  all  others,  of  any  kind  or 
nature  whatsoever,  to  which  she  is  or  may  be  entitled  by  any  law 
now  or  heretofore  in  force  in  the  said  State  of  Louisiana.  And  the 
said  husband,  being  now  present,  aiding  and  authorizing  his  said 
wife  in  the  execution  of  these  presents,  she,  the  said  wife,  did  again 
declare  that  she  did,  and  doth  hereby,  make  a  formal  renunciation 
and  relinquishment  of  all  her  said  matrimonial,  dotal,  paraphernal, 
and  other  rights,  claims,  and  privileges,  in  favor  of  the  said  Y  Z, 
binding  herself  and  her  heirs,  at  all  times,  to  sustain  and  acknowl- 
edge, at  all  times,  the  validity  of  this  renunciation. 

Thus  done  and  passed  in  my  office,  in  the  said  city  of ,  in 

the  presence  of  O  P  and  Q  K,  competent  witnesses,  who  hereunto 
subscribe  their  names,  together  with  the  said  appearers  and  me, 

commissioner,  on  the day  of  ,  A.  D.  eighteen  hundred  and 

[Signatures  of  parties,  of  witnesses,  and  of  officer, 
and  his  title  and  official  seal.] 


38.  Acknowledgment  of  private  act. 

STATE  OF  LOUISIANA,") 

County  of  ,  ) 

Be  it  remembered,  that  on  the day  of  ,  in  the  year  one 

thousand  eight  hundred  and ,  before  me,  M  N,  a  commissioner, 

resident  in  the  city  of ,  duly  commissioned  and  qualified  by 

the  executive  authority,  and  under  the  laws  of  the  State  of  Louisi- 
ana, to  take  acknowledgments  of  deeds,  etc.,  to  be  used  or  recorded 
therein,  personally  appeared  A  B,  to  me  known  to  be  the  individual 
named  in  and  who  executed  the  above  [or  foregoing]  conveyance, 
[or  instrument]  and  acknowledged  to  me  that  he  did  sign,  seal,  and 


186  ACKNOWLEDGMENTS. 

LOUISIANA— CONTINUED. 

deliver  the  same  as  his  free  act  and  deed,  on  the  day  and  year 
therein  mentioned,  and  for  the  consideration,  uses,  and  purposes 
therein  expressed. 

In  witness  whereof,  I  have  hereunto  set  my  hand  and  affixed 
my  official  seal,  the  day  and  year  aforesaid. 

[  Official  seal.~\  [Signature  and  title.'} 


MAINE. 

'Acknowledgment  by  grantor. 


STATE  OP  MAINE, 

County  of ,      ^  ss. 

Town  of , 


day  of ,  18 .  Then  personally  appeared  A  B,  [and 

C  B,  his  wife]  the  persons  [or  one  of  the  persons]  described  in  and 
who  executed  the  foregoing  instrument,  and  [severally]  acknowl- 
edged that  he  [or  they]  did  sign  and  seal  the  same  as  his  [or  their] 
free  act  and  deed,  before  me.  [Signature  and  title.'] 

\Seal>  if  any.'] 

[There  is  no  private  acknowledgment  required  from  the  wife, 
nor,  it  may  here  be  said,  in  any  of  the  New  England  States,  except 
in  Rhode  Island.] 


MARYLAND. 

40.  Acknowledgment  within  the  State. 

STATE  OP  MARYLAND,  ")     "• 

County  of ,  j 

I  hereby  certify  that,  on  this day  of ,  in  the  year , 

before  the  subscriber,  [here  state  style  of  the  officer  taking  the  ac- 
knowledgment^ personally  appeared  A  B,  and  acknowledged  the 
foregoing  deed  to  be  his  act.  [Signature  and  title.] 

41.  Acknowledgment  by  husband  and  wife. 

STATE  OP  MARYLAND,  )  gg 

County  of ,  ) 

I  hereby  certify  that,  on  this day  of ,  in  the  year , 

before  the  subscriber,  [here  insert  the  official  style  of  the  judge  tak- 
ing the  acknowledgment]  personally  appeared  A  B  and  C  B,  his 
wife,  and  did  each  acknowledge  the  foregoing  deed  to  be  their  re- 
spective act.  [Signature  and  title.] 


ACKNOWLEDGMENTS.  187 

MARYLAND— CONTINUED. 
42.  Acknowledgment  taken  without  the  State.    • 

STATE  OF  ,  \ 

County  of  ,  ) 

[As  in  Form  40,  except  the  attestation  will  be  as  follows :] 

In  testimony  whereof,  I  have  caused  the  seal  of  the  Court  to  be 

affixed,  [or  have  affixed  iny  official   seal]  this day  of  , 

18 .  [Signature,  title,  and  seal.] 

[The  preceding  forms  are  given  in  the  statute ;  but  it  is  provided 
that  "  any  form  of  acknowledgment,  containing  in  substance  the 
foregoing  forms,  shall  be  sufficient."  Maryland  Code,  (1860)  Art. 
24,  Sees.  66-69.] 


MASSACHUSETTS. 

43.  Acknowledgment  within  the  State. 

COMMONWEALTH  OF  MASSACHUSETTS,) 

County  of ,  f ss>  [Date.-] 

Then  personally  appeared  the  within  [or  above]  named  A  B, 
[and  C  B  his  wife]  and  acknowledged  the  foregoing  instrument 
to  be  his  [or  their]  free  act  and  deed  before  me. 

[Signature  and  title."] 

44.  Acknowledgment  by  attorney  in  fact. 

COMMONWEALTH  OF  MASSACHUSETTS,) 

County  of  ,  I Si  [Date.} 

Then  A  B,  above  mentioned  to  be  the  attorney  of  C  D,  above 
named,  personally  appeared  and  acknowledged  the  above  instru- 
ment to  be  the  free  act  and  deed  of  the  said  C  D ;  and  that  in  sub- 
scribing the  name  and  affixing  the  seal  of  the  said  C  D  to  the 
above  instrument,  he,  the  said  A  B,  acted  freely,  and  without  any 
manner  of  duress.  Before  me, 

[/Signature  and  title.] 


45.  Acknowledgment  without  the  State. 

STATE  ,OF  , ) 

County  of  ,  ) 

I,  M  N,  a  commissioner  for  the  Commonwealth  of  Massachusetts, 
residing  at ,  in  the  county  of  and  State  of  ,  do  cer- 
tify that  on  the  day  of  ,  in  the  year  A.  D.  18 ,  the 

above  named  A  B   personally  appeared  before  me  at  ,   in 

the  county  and  State  aforesaid,  and  acknowledged  the  foregoing 
instrument,  by  him  signed,  to  be  his  free  act  and  deed. 


188  ACKNOWLEDGMENTS. 

MASSACHUSETTS— CONTINUED. 

In  witness  whereof,  I  have  hereto  set  my  hand  and  affixed  my 

official  seal,  at ,  in  the  county  of  and  State  of  ,  on 

this day  of ,  18 .  [Signature  and  title.] 

[  Official  seal.] 

[This  form  is  prescribed  by  the  executive  department  of  the 
State  of  Massachusetts,  for  commissioners  resident  in  other  States.] 


MICHIGAN. 

46.  Acknowledgment  within  the  /State. 

STATE  OF  MICHIGAN, 
County  of 


ss. 


Be  it  remembered,  that  on  this day  of ,  18 ,  at , 

before  me,  M  N,  [a  justice  of  the  peace  in  and  for  said  county] 
personally  came  the  within  named  A  B,  personally  known  to  me  to 
be  the  person  described  in  and  who  executed  the  within  convey- 
ance, [or  instrument]  and  acknowledged  the  same  to  be  his  free  act 
and  deed.  [Signature  and  title.] 


47.  Acknowledgment  by  husband  and  wife. 

STATE  OP  MICHIGAN,) 

County  of  ,  j  Sk 

Be  it  remembered,  that  on  this day  of ,  18 ,  at , 

before  me,  M  N,  [a  justice  of  the  peace  in  and  for  said  county"] 
personally  came  the  within  named  A  B,  and  C  B,  his  wife,  person- 
ally known  to  me  to  be  the  persons  described  in  and  who  executed 
the  within  instrument,  and  acknowledged  the  same  to  be  their  free 
act  and  deed ;  and  the  said  C  B,  wife  of  the  said  A  B,  on  a  private 
examination  before  me,  separately  and  apart  from  her  said  husband, 
acknowledged  that  she  executed  the  same  freely,  and  without  any 
fear  or  compulsion  from  any  one.  [/Signature  and  title.] 


48.  Acknowledgment  of  deed  by  corporation. 

STATE  OF  ARKANSAS,) 

County  of ,  \  Si 

On  this day  of ,  A.  D.  18 — ,  before  me,  [style  of  officer] 

personally  appeared  A  B,  known  to  me  to  be  the  president  of  the 
M  N  Company,  and  C  D,  known  to  me  to  be  the  secretary  of  said 
company,  and  they  severally  acknowledged  the  execution  of  the 
foregokig  instrument  of  writing  to  be  the  free  act  and  deed  of  the 
said  company.  And  I  further  certify  that  I  know  the  seal  affixed 
to  said  instrument  to  be  the  corporate  seal  of  the  said  company. 

[Signature  and  title.] 


ACKNOWLEDGMENTS.  189 

MICHIGAN— CONTINUED. 

[If  taken  without  the  State,  insert,  "  In  witness,"  etc.  Compare 
this  form  for  acknowledgment  by  a  corporation  with  those  given 
for  California,  Delaware,  and  New  York.] 


MINNESOTA. 

49.  Acknowledgment  by  grantor. 

STATE  OF  MINNESOTA, 


County  of 


1  jss. 


Be  it  remembered,  that  on  the day  of ,  18 ,  before  the 

undersigned  came  A  B,  [and  C  D]  to  me  known  to  be  the  iden- 
tical person  [or  persons]  described  in  and  who  executed  the  fore- 
going deed,  and  [severally]  acknowledged  that  he  [or  they]  executed 
the  same  freely  and  voluntarily,  for  the  uses  and  purposes  therein 
expressed.  [Signature  and  title.] 

50.  Proof  by  a  subscribing  witness  before  a  Court  of  Becord  with- 
in the  /State. 

STATE  OF  MINNESOTA,  ") 
County  of ,  ) 

Be  it  remembered,  that  on  this day  of ,  18 ,  it  appeai-- 

ing  to  the  Court  that  A  B,  the  grantor  in  the  within  [or  annexed] 

deed  to  Y  Z,  bearing  date  the day  of ,  18 ,  has  died, 

[or  departed  from  this  State,  or  resides  out  of  this  State,  as  the 
case  may  be]  not  having  acknowledged  the  execution  of  such  deed, 
M  N,  a  competent  subscribing  witness  to  said  deed,  appeared  in 
open  Court,  and,  being  duly  sworn  according  to  law,  deposed  and 
said :  That  he  is  the  identical  person  of  that  name  who  attested  the 
said  deed  as  a  subscribing  witness ;  that  he  saw  the  said  A  B  duly 
execute  the  said  deed  for  the  purposes  therein  stated,  and  that  he, 
the  said  M  N,  and  O  P,  the  other  subscribing  witness  to  said 
deed,  then  and  there  subscribed  the  same  as  witnesses  in  the  pres- 
ence of  said  A  B,  and  in  the  presence  of  each  other. 

In  testimony   whereof,   I,   G  H,  clerk  of  said  Court,  which  is 
a  Court  of  Record,  have  hereunto  set  my  hand  and  affixed  the  seal 

of  said  Court,  this day  of ,  18 . 

[Seal  of  Court.]  [Signature]     Clerk  of Court. 


MISSISSIPPI. 
51.  Acknowledgment  by  grantor. 

STATE  OF  MISSISSIPPI,) 

County  of ,  j  Si 

On  this day  of ,  18 ,  personally  appeared  before  me, 

[giving  name  and  title  of  officer]   the   above-named   [or   within- 


190  ACKNOWLEDGMENTS. 

MISSISSIPPI— CoxTmr/Ei>. 

named]  A  B,*  who  acknowledged  that  he  signed,  sealed,  and  de- 
livered the  foregoing  deed,  on  the  day  and  year  therein  mentioned, 
as  his  voluntary  act  and  deed.  Given  under  my  hand  [and  seal]  this 

day  of ,  A.  D.  one  thousand  eight  hundred  and . 

[Seal,  if  any.]  [Signature  and  title.] 


52.  Acknowledgment  by  husband  and  wife. 

[As  in  the  foregoing  form  to  the  *,  continuing :]  and  C  B,  his  wife, 
who  severally  acknowledged  that  they  signed,  sealed,  and  delivered 
the  foregoing  deed,  on  the  day  and  year  therein  mentioned,  as  their 
voluntary  act  and  deed.  And  the  said  C  B,  upon  a  private  exam- 
ination before  me,  apart  from  her  husband,  previously  acknowl- 
edged that  she  signed,  sealed,  and  delivered  the  same  as  her  volun- 
tary act  and  deed,  freely,  without  any  fear,  threats,  or  compulsion 
of  her  husband. 

Given,  etc.  [as  in  the  preceding  form].' 


MISSOURI. 
53.  Acknowledgment  by  grantor. 

STATE  OF  MISSOURI,") 
County  of ,  ) 

Be  it  remembered,  that  A  B,  who  is  personally  known  to  the  un- 
dersigned, a  justice  of  the  peace  within  and  for  said  county  [or 
other  officer,  as  the  case  may  be]  to  be  the  person  whose  name  is 
subscribed  to  the  within  [or  ioregoing]  deed  [or  instrument  of 
writing]  as  a  party  thereto,  this  day  appeared  before  me,  and  ac- 
knowledged that  he  executed  and  delivered  the  same  as  his  volun- 
tary act  and  deed,  for  the  uses  and  purposes  therein  contained. 

Given  under  my  hand,  [and  seal  of  office]  this day  of , 

18 .  [Signature  and  title.] 

[Seal,  if  any.] 


54.       Acknowledgment  when  grantor  not  personally  known. 

STATE  OF  MISSOURI,  ") 

County  of ,         j ?s< 

Be  it  remembered,  that  on  this day  of ,  18 ,  at , 

A  B  personally  appeared  before  the  undersigned,  a  justice  of  the 
peace  within  and  for  said  county;  and  CD  and  E  F,  two  witnesses, 
having  been  by  me  first  duly  sworn,  deposed  and  said :  That  the  said 
A  B  is  the  person  whose  name  is  subscribed  to  the  within  [or  fore- 
going] deed  [or  instrument  of  writing}  as  a  party  thereto ;  and  the 
said  A  B  then  and  there  acknowledged  that  he  executed  and  de- 


ACKNOWLEDGMENTS.  191 

MIS  SOURI— CONTINUED. 

livered  the  same  as  his  voluntary  act  and  deed,  for  the  uses  and 
purposes  therein  mentioned. 

Given,  etc.  [as  in  the  preceding  forni\. 


55.  By  husband  and  wife  to  extinguish  dower. 

STATE  OF  MISSOURI,  ") 
County  of ,  jsi 

Be  it  remembered,  that  A  B  and  C  B,  his  wife,  who  are  person- 
ally known  to  the  iindersigned,  a  justice  of  the  peace  within  and 
for  said  county,  [or  other  officer,  as  the  case  may  be]  to  be  the  per- 
sons whose  names  are  subscribed  to  the  within  [or  foregoing]  deed 
[or  instrument  in  writing]  as  parties  thereto,  this  day  appeared 
before  me,  and  acknowledged  that  they  executed  and  delivered  the 
same  as  their  voluntary  act  and  deed,  for  the  uses  and  purposes 
therein  contained.  And  the  said  C  B,  being  by  me  made  acquainted 
with  the  contents  of  said  deed,  [or  instrument]  acknowledged,  on 
an  examination  apart  from  her  said  husband,  that  she  executed  the 
same,  and  relinquishes  her  dower  on  the  real  estate  mentioned, 
freely,  and  without  compulsion  or  undue  influence  of  her  said 
husband. 

Given,  etc.  [as  in  Form  53~\. 

[The  same  form  may  be  used  when  husband  and  wife  execute  a 
deed  to  convey  the  wife's  separate  property,  but  omit  "  and  re- 
linquishes her  dower  in  the  real  estate  mentioned."] 


NEBRASKA. 

[The  forms  given  for  Iowa  may  be  used ;  and,  as  in  Iowa,  no 
private  examination  of  married  women  is  necessary.] 


NEVADA. 

[The  forms  are  substantially  the  same  as  those  for  California ; 
and,  as  in  that  State,  a  private  acknowledgment  is  required  from 
married  women.] 


NEW  HAMPSHIRE. 

56.  Acknowledgment  within  the  /State. 

STATE  OF  NEW  HAMPSHIRE,) 

County  of  ,  ) 

On  the day  of ,  18 ,  the  above  [or  within]  named 

A  B  [and  C  B,  his  wife]  personally  appeared,  and  acknowledged 


ACKNOWLEDGMENTS. 

NEW  HAMPSHIRE— CONTINUED. 

the  above  [or  within]  written  instrument  by  him  [or  them]  sub- 
scribed, to  be  his  [or  their]  free  and  voluntary  act  and  deed  * 
before  me.  [Signature  and  title.'] 


57.  Acknowledgment  without  the  State. 

[As  in  the  preceding  form  to  the  *,  then  the  following :]  Before 
me,  M  N,  a  justice  of  the  peace,  [or  a  notary  public,  or  other 
officer]  in  and  for  the  State  and  county  [and  town]  aforesaid. 

[/Scaly  if  am/.]  [Signature  and  title.] 


NEW  JERSEY. 

58.  Acknowledgment  within  the  State. 

STATE  OF  NEW  JERSEY,  >  gg 

County  of ,  ) 

Be  it  remembered,  that  on  this day  of ,  18 before 

me  [giving  name  and  title  of  officer]  came  A  B,  who  I  am  satisfied 
is  the  grantor  mentioned  in  the  foregoing  deed,  [or  instrument]  and, 
I  having  first  made  known  to  him  the  contents  thereof,  he  acknoAvl- 
edged  that  he  signed,  sealed,  and  delivered  the  same  as  his  volun- 
tary act  and  deed,  for  the  uses  and  purposes  therein  expressed. 

[Signature.] 

59.  Acknowledgment  by  husband  and  wife. 

STATE  OF  NEW  JERSEY,) 

County  of  ,  ) 

Be  it  remembered,  that  on  this day  of  ,  18 ,  before 

me,  [gitring  name  and  title  of  officer]  personally  came  A  B,  and 
C  B,  his  wife,  who  I  am  'satisfied  are  the  grantors  mentioned  in 
the  foregoing  deed,  [or  instrument]  and,  I  having  first  made  known 
to  them  the  contents  thereof,  they  acknowledged  that  they  signed, 
sealed,  and  delivered  the  same  as  their  voluntary  act  and  deed,  for 
the  uses  and  purposes  therein  mentioned.  And  the  said  C  B,  being 
by  me  examined,  privately  and  apart  from  her  husband,  pre- 
viously acknowledged  that  she  signed,  sealed,  and  delivered  the 
same  as  her  voluntary  act  and  deed,  freely,  and  without  any  fea^r, 
threats,  or  compulsion  of  her  husband.  [Signature] 

60.  Acknowledgment  of  deed  by  a  corporation. 

STATE  OF  NEW  JERSEY,  ") 

County  of  ,  ) 

Be  it  remembered,  that  on  this day  of  ,  18 ,  before 

me,  [giving  name  and  title  of  officer]  personally  came  A  B,  who  is, 


ACKNOWLEDGMENTS.  193 

NEW  JERSEY— CONTINUED.  . 

I  am  satisfied,  the  cashier  of  the bank  at ,  who,  being  by 

me  duly  sworn,  did  depose  and  say  :  That  he  knows  the  corporate 
seal  of  said  bank,  and  that  the  seal  affixed  to  the  foregoing  convey- 
ance [or  instrument]  is  the  corporate  seal  of  said  bank ;  and  that 
the  said  seal  was  affixed  to  the  said  conveyance  [or  instrument]  by 
order  of  the  directors  of  said  bank ;  that  C  D  is  the  president  of 
said  bank,  and  did  sign  the  said  conveyance  [or  instrument]  by  or- 
der of  the  said  directors,  in  deponent's  presence,  and  that  he,  this 
deponent,  by  like  order,  did  sign  his  name  thereto  as  the  cashier  of 
said  bank.  *  [Signature.] 

61.  Acknowledgment  without  the  State. 

STATE  OF  ,") 

County  of  ,  j  ss' 

Be  it  remembered,  that  on  this day  of  ,  18 ,  before 

the  subscriber,  a  commissioner  for  the  State  of  New  Jersey,  for 
taking  the  acknowledgment  and  proof  of  deeds,  personally  came 
A  B,  [and  C  B,  his  wife]  known  to  me  [or  proven  to  my  satisfac- 
tion] to  be  the  grantor  [or  grantors]  in  the  within  conveyance  [or 
instrument]  named ;  and,  the  contents  thereof  being  by  me  first 
made  known  to  him,  he  acknowledged  that  he  [or  to  them,  they  ac- 
knowledged that  they]  signed,  sealed,  and  delivered  the  same  as 


his  [or  their]  voluntary  act  and  deed.  [And  the  said  C  B,  being  by 
me  examined,  privately  and  apart  from  her  husband,  acknowledged 
that  she  signed,  sealed,  and  delivered  the  same  freely,  without  any 
fear,  threat,  or  compulsion  of  her  said  husband.]  All  of  which  I 
certify  under  my  hand  and  official  seal.  [Signature  and  title.] 
[  Official  seal.] 


NEW  MEXICO. 

62.  Acknowledgment  by  husband  and  wife. 

TERRITORY  OF  NEW  MEXICO,) 

County  of ,  j 

Be  it  remembered,  that  on  this day  of ,  18 ,  before 

me,  [naming  Court  or  officer,  with  his  title]  personally  came  A  B 
and  C  B,  his  wife,  personally  known  to  me  as  the  persons  executing 
the  within,  [or  foregoing  instrument]  and  severally  acknowledged 
that  they  executed  the  same  for  the  purposes  therein  mentioned. 
And  the  said  C  B,  being  first  by  me  informed  of  the  contents  of  the 
instrument,  did  confess,  upon  an  examination  independent  of  her 
husband,  that  she  executed  the  same  voluntarily  and  without  the 
compulsion  or  illicit  influence  of  her  husband. 

[  Official  seal.]  [Signature  and  title] 

[The  form  for  a  single  grantor  is  the  usual  one.] 

NOTARIES — 13. 


194  ACKNOWLEDGMENTS. 

NEW  YORK. 

63.  Acknowledgment  by  grantor  known  to  the  officer. 

STATE  OF  NEW  YORK,") 

County  of ,  j  S! 

On  this day  of  ,  in  the  year  18 ,  before  me  person- 
ally came  A  B,  to  me  known  to  be  the  individual  described  in  and 
who  executed  the  within  [or  above,  or  annexed]  conveyance,  [or 
instrument]  and  acknowledged  that  he  executed  the  same  for  the 
purposes  therein  mentioned.  [Signature  and  title."] 

64.  By  grantor  not  known  to  the  officer. 

STATE  OF  NEW  YOEK,  ) 

County  of ,  j  Si 

On  this day  of  ,  in  the  year  18 ,  before  me  person- 
ally came  A  B,  proven  to  me  satisfactorily  to  be  the  individual  de- 
scribed in  and  who  executed  the  within  [or  above,  or  annexed] 
conveyance,  [or  instrument]  by  the  oath  of  M  N,  who,  being  by  me 
duly  sworn,  [or  affirmed]  did  depose  and  say:  That  he  resided  in 

the  city  of ,  in  the  county  of ;  that  he  was  acquainted  with 

the  said  A  B,  and  that  he  knew  him  to  be'  the  same  person  de- 
scribed in  and  who  executed  the  within  conveyance,  [or  instru- 
ment] and  thereupon  the  said  A  B  acknowledged  before  me  that 
he  executed  the  same  for  the  purposes  therein  mentioned. 

\  Signature  and  title.] 

65.  By  husband  and  wife  known  to  the  officer. 

STATE  OF  NEW  YOKK,  ) 

County  of ,  j  Si 

On  this day  of  — ^»,  in  the  year  18 ,  before  me  personally 

came  A  B,  and  C  B,  his  wife,  to  me  known  to  be  the  individuals 
described  in  and  who  executed  the  within  [or  above,  or  annexed] 
conveyance,  [or  instrument]  and  severally  acknowledged  that  they 
executed  the  same  for  the  purposes  therein  mentioned.  And  the 
said  C  B,  on  a  private  examination  by  me  made  apart  from  her 
husband,  acknowledged  that  she  executed  the  same  freely,  and  with- 
out any  fear  or  compulsion  of  her  said  husband. 

[Signature  and  title.] 


66.  By  husband  and  wife  resident  without  the  State. 

STATE  OF ,  ) 

County  of ,  j  s; 

On  this day  of ,  in  the  year  18 ,  before  me  person- 
ally came  A  B,  and  also  C  B,  his  wife,  who  reside  at : ,  in  the 


ACKNOWLEDGMENTS.  195 

NEW  YORK— CONTINUED.  '. 

State  of ,  and  who  executed  the  within  [or  above,  or  annexed] 

conveyance,  [or  instrument]  and  severally  acknowledged  that  they 
executed  the  same  for  the  purposes  therein  mentioned. 

[Signature  and  title. ~\ 


67.  By  an  attorney  in  fact,  known  to  the  officer. 

STATE  OF  NEW  YOBK, 
County  of 


1  j-ss. 


On  this day  of ,  in  the  year  18 ,  before  me  person- 
ally came  A  B,  the  attorney  of  C  D,  known  to  me  to  be  the  individ- 
ual described  in,  and  who,  as  such  attorney,  executed  the  within 
[or  above,  or  annexed]  conveyance,  [or  instrument]  and  acknowl- 
edged that  he  executed  the  same  as  the  act  and  deed  of  C  D, 
therein  described,  and  for  the  purposes  therein  mentioned,  by  virtue 
of  a  power  of  attorney,  duly  executed  by  the  said  C  D,  bearing 

date  the  day  of ,  in  the  year  18 ,  [and  recorded  in 

the  office  of  the  register,  in  and  for  the  city  and  county  of , 

on  the day  of ,  in  the  year  18 .] 

[Signature  and  title.] 


68.  By  a  sheriff,  referee^  or  receiver. 

STATE  OF  NEW  YORK,  ) 

County  of ,  }  Si 

On  this day  of ,  in  the  year  18 ,  before  me  person- 
ally came  A  B,  sheriff  of  the  county  of ,  [or  late  sheriff  of  the 

county  of ,  or  referee  in  the  cause  within  named,  or  receiver 

in,  etc.]  to  me  known  to  be  the  individual  described  in  and  who 
executed  the  within  [or  above,  or  annexed]  conveyance,  [or  instru- 
ment] and  acknowledged  that  he  executed  the  same  for  the  pur- 
poses therein  mentioned.  [Signature  and  title.~\ 


69.          Proof  by  subscribing  witness,  known  to  the  officer. 

STATE  OF  NEW  YORK,  \ 

County  of  ,  ) 

On  this day  of ,  in  the  year  18 ,  before  me  person- 
ally «ame  M  N,  subscribing  witness  to  the  within  [or  above  or  an- 
nexed] conveyance,  [or  instrument]  with  whom  I  am  personally 
acquainted,  who,  being  by  me  duly  sworn,  said  :  That  he  resided  in 

the  city  of  ;  that  he  was  acquainted  with  A  B,  and  knew  him 

to  be  the  person  described  in  and  who  executed  the  said  convey- 
ance, [or  instrument]  and  that  he  saw  him  execute  and  deliver  the 
same ;  and  that  he  acknowledged  to  him,  the  said  M  N,  [naming 
witness]  that  he  executed  and  delivered  the  same ;  and  that  he,  the 
said  M  N,  thereupon  subscribed  his  name  as  a  witness  thereto. 

[Signature  and  title.] 


196  ACKNOWLEDGMENTS. 

NEW  YORK— CONTINUED. 

70.     Proof  of  a  deed  by  a  corporation  signed  by  the  president, 
cashier,  or  secretary. 

STATE  OF  NEW  YORK,") 

County  of ,  j 

On  this day  of  ,  in  the  year  18 ,  before  me  person- 
ally came  C  D,  secretary  of  the  E  Insurance  Company,  of  the  city 

of ,  with  whom  I  am  personally  acquainted,  who,  being  by  me 

duly  sworn,  said  :  That  he  resided  in  the  city  of ;  that  he  was 

the  secretary  of  the  E  Insurance  Company,  of  the  city  of ; 

that  he  knew  the  corporate  seal  of  the  said  company ;  that  the  seal  af- 
fixed to  the  within  [or  above  or  annexed]  conveyance  [or  instru- 
ment] was  such  corporate  seal ;  that  it  was  so  affixed  by  order  of 
the  Board  of  Directors  of  said  company,  and  that  he  signed  his 
name  thereto  by  the  like  order  as  secretary  of  said  company.  And 
the  said  C  D  further  said :  That  he  was  acquainted  with  A  B,  and 
knew  him  to  be  the  president  of  said  company ;  that  the  signature 
of  the  said  A  B,  subscribed  to  the  said  conveyance,  was  in  the  gen- 
uine handwriting  of  the  said  A  B,  and  was  thereto  subscribed  by 
the  like  order  of  the  said  Board  of  Directors,  and  in  the  presence 
of  him,  the  said  C  D.  [Signature  and  title.] 


NORTH   CAROLINA. 

71.  Acknowledgment  within  the  /State. 

STATE  OP  NORTH  CAROLINA,  to  wit :  [Date.] 

Before  me,  one  of  the, judges  of  the  Supreme  Court,  [or  other 
judge  or  clerk]  came  A  BJ*  the  grantor  or  vendor  in  the  foregoing 
deed,  and  acknowledged  the  execution  thereof  for  the  purposes 
therein  expressed.  [/Signature  and  title.] 

72.  JBy  husband  and  wife. 

[As  in  the  preceding.  After  *  continue:]  And  C  B,  the  bar- 
gainers in  the  foregoing  deed,  and  acknowledged  the  execution 
thereof,  for  the  purposes  therein  expressed ;  she,  the  said  C  B,  be- 
ing first  privily  examined  by  me,  apart  from  her  said  husband, 
touching  the  free  execution  thereof,  and  acknowledged  that  she 
executed  the  same  freely,  and  of  her  own  accord,  without  fear  or 
compulsion  of  her  said  husband,  or  any  other  person  whatsoever, 
and  that  she  voluntarily  assents  thereto.  [/Signature  and  title] 


ACKNOWLEDGMENTS.  197 

OHIO. 

73.  Acknowledgment  within  the  State. 

STATE  OP  OHIO,  ) 

County  of ,   jss- 

Before  me,  M  N,  a  justice  of  the  peace  in  and  for  said  county, 
[or  judge  of Court,  or  other  officer,  as  the  case  may  be]  per- 
sonally appeared  the  within  [or  above]  named  A  B,  and  acknowl- 
edged the  signing  and  sealing  of  the  within  [or  above]  conveyance 
[or  power  of  attorney,  or  mortgage,  or  lease,  or  other  instrument] 

to  be  his  voluntary  act  and  deed,  this day  of ,  18 . 

[Signature  and  title.] 


74.  J>y  husband  and  wife. 

STATE  OP  OHIO,  ) 

County  of ,  j  SS' 

Before  me,  M  N,  a  justice  of  the  peace  in  and  for  said  county, 

[or  judge  of  the Court,  or  other  officer,  as  the  case  may  be] 

personally  appeared  the  within  [or  above]  named  A  B,  and  C  B, 
his  wife,  and  acknowledged  the  signing  and  sealing  of  the  within 
[or  above]  conveyance  [or  power  of  attorney,  or  mortgage,  or 
lease,  or  other  instrument]  to  be  their  voluntary  act  and  deed ;  and 
the  said  C  B,  being  at  the  same*  time  examined  by  me,  separate  and 
apart  from  her  said  husband,  and  the  contents  of  said  deed  [or 
instrument]  being  made  known  to  her  by  me,  she  then  declared 
that  she  did  voluntarily  sign,  seal,  and  acknowledge  the  same,  and 

that  she  is  still  satisfied  therewith  as  her  act  and  deed,  this 

day  of ,  A.  D.  18 .  [Signature  and  title.] 


75.  By  husband  and  wife  without  the  /State. 

STATE  OF 


County  of  -  ,     SS 

Before  me,  M  N,  a  commissioner  of  the  State  of  Ohio,  resident 
in  said  State  and  county,  appeared  the  within  [or  above]  named 
A  B,  and  C  B,  his  wife,  and  acknowledged  the  signing  and  sealing 
!of  the  within  [or  above]  conveyance  [or  power  of  attorney,  or 
mortgage,  or  lease,  or  instrument]  to  be  their  voluntary  act  and 
deed  ;  and  the  said  C  B,  being  at  the  same  time  examined  by  me, 
separate  and  apart  from  her  husband,  and  the  contents  of  said 
instrument  made  known  to  her  by  me,  she  then  declared  that  she 
did  voluntarily  sign,  seal,  and  acknowledge  the  same,  and  that  she 
is  still  satisfied  therewith,  this  -  day  of  -  ,  A.  D.  18  -  . 

[xS<sa£.]  [Signature  and  title.'] 

[The  preceding  form  is  prescribed  for  the  guidance  of  commis- 
sioners of  the  State  resident  in  other  States.     The  certificate  of 


198  ACKNOWLEDGMENTS. 

OHIO — CONTINUED. 

acknowledgment,  if  taken  within  the  State  must  be  written  on  the 
same  paper  as  the  instrument,  and  a  certificate  on  a  separate  paper, 
though  it  be  affixed  with  a  wafer,  is  void.  Winkler  v.  Higgins,  9 
Ohio  St.  599.] 


OREGON. 
76.  Acknowledgment  by  grantor  known  to  the  officer. 

STATE  OF  OREGON,  > 

County  of ,        j 

On  this day  of ,  in  the  year  18 ,  before  me  person- 
ally came  A  B,  to  me  known  to  be  the  individual  described  in  and 
who  executed  the  within  [or  foregoing]  conveyance,  [or  bond,  or 
letter  of  attorney,  or  instrument  in  writing]  and  acknowledged 
that  he  executed  the  same  for  the  uses  and  purposes  therein 
mentioned.  [Signature  and  title."] 


PENNSYLVANIA. 

77.  Acknowledgment  within  or  without  the  State. 

COMMONWEALTH  or  STATE  OF , ) 

County  of ,  j 

Be  it  remembered,  that  on  this  day  of  ,  A.  D.  18 , 

before  me,  the  subscriber,  a  justice  of  the  peace  of ,  [or  a  judge 

of  the  Court  of ,  or  one  of  the  aldermen  of  the  city  of  , 

or  a  notary  public  for  the  county  of ]  personally  appeared  A 

B,  the  grantor  in  the  foregoing  indenture  [or  deed  or  conveyance] 
named,  and  in  due  form  of  law  acknowledged  the  said  indenture  to 
be  his  act  and  deed,  and  desired  that  the  same,  as  such,  might  be 
recorded  according  to  law.  [Signature  and  title.']  . 

[Seal.] 


78.  By  husband  and  wife. 

COMMONWEALTH  or  STATE  OF  PENNSYLVANIA,! 

County  of ,  ) 

Be  it  remembered,  that  on  this day  of ,  18 ,  before 

me,  [name  and  style  of  officer]  personally  came  A  B  and  C  B,  his 
wife,  and  severally  acknowledged  the  above  deed  [or  conveyance] 
to  be  their  act  and  deed,  and  desired  that  the  same  might  be  re- 
corded as  such ;  and  the  said  C  B,  being  of  lawful  age,  on  a  private 
examination  by  me,  separate  and  apart  from  her  husband,  the  con- 
tents of  said  deed  being  first  made  fully  known  to  her,  declared 
that  she  did  voluntarily,  and  of  her  own  free  will  and  accord,  and 
as  her  own  free  act  and  deed,  deliver  the  said  deed  [or  conveyance] 
without  any  coercion  or  compulsion  of  her  said  husband. 


ACKNOWLEDGMENTS.  199 

PENNSYLVANIA— CONTINUED. 

In  testimony  whereof,  I  have  hereunto  set  my  hand  and  seal  the 
day  and  year  last  above  named.  [Signature  and  title.'] 

[Seal'] 

79.  Acknowledgment  of  corporation. 

COMMONWEALTH  or  STATE  OF  PENNSYLVANIA,) 
County  of ,  j  8f 

Be  it  remembered,  that  on  this day  of ,  18 ,  before 

me,  [name  and  style  of  officer]  personally  came  the  above  named 
A  B,  president  of  the  above  named  corporation,  who,  being  duly 
sworn,  deposes  and  says :  That  he  was  personally  present  at  the  ex- 
ecution of  the  above  written  indenture,  [or  other  instrument]  and 
saw  the  common  seal  of  the  said  [naming  the  corporation]  duly 
affixed  thereto ;  and  that  the  seal  so  affixed  is  the  common  and  cor- 
porate seal  of  the  said ;  and  that  the  above  written  indenture 

[or  other  instrument]  was  duly  sealed  and  delivered  by  him,  as  and 

for  the  act  and  deed  of  the  said  corporation  of  the ,  for  the 

uses  and  purposes  therein  mentioned  ;  and  that  the  name  of  this 
deponent,  subscribed  to  said  deed  as  the  president  of  said  corpora- 
tion, in  attestation  of  the  due  execution  and  delivery  of  said  deed, 
is  of  this  deponent's  proper  handwriting. 

[Signature  of  deponent] 

Sworn  and  subscribed  before  me,  this  day  of  ,  18 , 

[Signature,  title,  and  seal  of  officer.] 


RHODE  ISLAND. 

80.  Acknowledgment  within  the  State. 

STATE  OF  RHODE  ISLAND,  the day  of  ,  18 . 

Providence,  to  wit :  Then  personally  appeared  the  within-named 
A  B,  and  acknowledged  the  within  instrument  to  be  his  free  volun- 
tary act  and  deed,  hand  and  seal  before  me. 

[Signature  and  title.] 

81.  The  same  by  husband  and  wife. 

[A.s  in  the  preceding  form,  adding  as  follows :]  And  afterward 
on  the  same  day  came  C  B,  wife  of  the  said  A  B,  and  was  by  me 
examined,  privily  and  apart  from  her  said  husband,  when  the  said 
above  written  instrument,  by  her  subscribed,  was  shown  and  ex- 
plained to  her  by  me,  when  she  declared  to  me  that  the  same  was 
her  free  voluntary  act  and  deed,  hand  and  seal,  and  that  she  did  not 
wish  to  retract  the  same.  [Signature  and  title] 

[In  case  of  a  relinquishment  of  dower,  insert  after  "  hand  and 
seal,"  "  in  release  of  her  dower  interest  in  the  lands  therein  men- 
tioned."] 


200  ACKNOWLEDGMENTS. 

RHODE  ISLAND— CONTINUED. 
82.  Acknowledgment  without  the  State. 

STATE  OF  ,  \ 

County  of  , }  S8' 

Be  it  remembered,  that  on  the day  of ,  in  the  year  one 

thousand  eight  hundred  and  ,  before  me,  the  undersigned,  M 

N,  a  commissioner  resident  in ,  duly  commissioned  and  quali- 
fied by  the  executive  authority,  and  under  the  laws  of  the  State  of 
Rhode  Island,  to  take  tfie  acknowledgments  of  deeds,  etc.,  to  be 
used  or  recorded  therein,  personally  appeared  [etc.,  continuing  as 
in  preceding  forms}. 

In  witness  whereof,  I  have  hereunto  set  my  hand  and  affixed  my 
official  seal,  the  day  and  year  aforesaid. 

[Seal.]  [Signature  and  title.] 


SOUTH  CAROLINA. 

83.  Proof  by  subscribing  witness. 

STATE  OF  SOUTH  CAROLINA,  ) 
District  [or  County]  of ,  j 

Be  it  remembered,  that  on  this day  of  ,  18 ,  before 

me,  [giving  name  and  style  of  officer]  personally  appeared  M  N, 
with  whom  I  am  personally  acquainted,  and  made  oath  that  he  saw 
the  within  named  A  B  sign,  seal,  and  as  his  act  and  deed,  deliver 
the  within  deed  for  the  uses  and  purposes  therein  mentioned ;  and 
that  he  [with  O  P,  in  the  presence  of  each  other]  subscribed  his 
name  as  a  witness  of  the  due  execution  thereof. 

Sworn  to  before  me,  this day  of  [as  witness  my  hand 

and  official  seal].  [Signature  and  title."] 


[It  is  usual  to  prove  withJh  the  State  by  a  witness  as  in  the  fore- 
going; but  when  acknowledged  by  the  grantor,  any  of  the  ordinary 
forms  may  be  used.  The  following  form  is  prescribed.  Rev. 
Stat.  (1873)  p.  430.] 


84.  Acknowledgment  of  release  of  dower. 

STATE  OF  SOUTH  CAROLINA,) 

District  [or  County]  of ,  )  ss* 

I,  J  P,  [giving  name  and  official  title  of  officer]  do  hereby  certi- 
fy unto  all  whom  it  may  concern,  that  C  B,  the  wife  of  the  within 
named  A  B,  did  this  day  appear  before  me,  and,  upon  being  private- 
ly and  separately  examined  by  me,  did  declare  that  she  does  freely, 
voluntarily,  and  without  any  compulsion,  dread,  or  fear  of  any 
person  or  persons  whomsoever,  renounce,  release,  and  forever  re- 
linquish unto  the  within  named  Y  Z,  his  heirs  and  assigns,  all  her 


ACKNOWLEDGMENTS.  201 

SOUTH  CAROLINA— CONTINUED. 

interest  and  estate,  and  also  all  her  right  and  claim  of  dower  of,  in, 
or  to  all  and  singular  the  premises  within  mentioned  and  released. 

Given  under  my  hand  and  seal,  this day  of  ,  A.  D.  one 

thousand  eight  hundred  and .  [Signature  of  wife."] 

[Signature,  title,  and  seal  of  officer.] 


TENNESSEE. 
85.  Acknowledgment  by  husband  and  wife. 

STATE  OF  TENNESSEE, 
County  of , 

On  this day  of ,  18 ,  at  ,  personally  appeared 

before  me,  [giving  name  and  title  of  officer]  the  within  named 
bargainer,  with  whom  I  am  personally  acquainted,  and  who 
acknowledged  that  he  executed  the  within  instrument,  for  the  pur- 
poses therein  contained.  And  C  B,  the  wife  of  the  said  A  B, 
having  appeared  before  me  privately  and  apart  from  her  husband, 
the  said  C  B  acknowledged  the  execution  of  the  said  deed  to  have 
been  done  by  her  freely,  voluntarily,  and  understandingly,  without 
compulsion  or  constraint  from  her  said  husband,  and  for  the  pur- 
poses therein  expressed. 

Witness  my  hand  and  seal,  the  day  and  year  first  above  written. 

[Seal]  [Signature  and  title.] 

[The  form  for  a  single  grantor  is  the  same  as  the  above,  leaving 
out  the  sentence  beginning, "  And  C  B,"  etc.  The  seal  is  unnecessary 
if  the  acknowledgment  be  made  before  a  judge,  but  in  such  case 
there  must  be  annexed  a  certificate  to  the  judge's  official  character, 
which  may  be  by  the  clerk  under  the  seal  of  the  clerk,  or,  if  he 
have  none,  under  his  private  seal.] 


TEXAS. 

86.  Acknowledgment  of  married  woman. 

STATE  OF  TEXAS, 


County  of 


7 
) 


Before  me,  -  ,  judge  of  [or  notary  public  of]  -  County,  per- 
sonally appeared  C  B,  wife  of  A  B,  parties  to  a  certain  deed  or 
writing,  bearing  date  the  -  day  of  -  ,  and  hereto  annexed, 
and  having  been  examined  by  me  privily  and  apart  from  her  hus- 
band, and  having  the  same  fully  explained  to  her,  the  said  C  B  ac- 
knowledged the  same  to  be  her  act  and  deed,  and  declared  that  she 
had  willingly  signed,  sealed,  and  delivered  the  same,  and  that  she 
wished  not  to  retract  it,  to  certify  which  I  hereto  sign  my  name 
and  affix  my  seal,  this  -  day  of  --  ,  A.  D.  -  . 

[Signature  and  seal.] 


202  ACKNOWLEDGMENTS. 

TEXAS— CONTINUED. 

[This  form  is  prescribed  by  the  statute.  Paschal's  Dig.  Art.  1003. 
The  form  for  a  single  grantor  is  the  same  as  that  in  New  York. 
The  certificate  must  in  all  cases  be  under  seal.] 


VERMONT. 
L7.  Acknowledgment  by  grantor. 

STATE  OF  VERMONT,] 

County  of  ,          J 

The day  of  ,  18 .    Then  personally  appeared  A  B, 

[and  C  B,  his  wife]  to  me  known,  and  [severally]  acknowledged 
the  within  instrument  by  him  [or  them]  signed  and  sealed,  to  be 
his  [or  their]  free  act  and  deed,  before  me: 

[Signature  and  title.'} 


88.  Acknowledgment  by  agent  of  a  corporation. 

STATE  OF  VERMONT,  ")  , 

County  of ,  J  SJ 

The day  of ,  18 .    Then  personally  appeared  A  B, 

within  named,  to  be  the  agent  of  the  within  named  C  D  Company, 
and  acknowledged  the  within  instrument  to  be  the  free  act  and 
deed  of  the  said  C  D  Company.  [Signature  and  title.'] 

[The  last  form  is  held  sufficient  in  McDaniels  v.  Flower  Brook 
Manfg.  Co.  22  Vt.  274.] 


VIRGINIA. 

89.  Acknoicledgment  within  or  without  the  State. 

STATE  OF  ,  \ 

County  of  ,  J  Si 

I,  M  M,  a  commissioner  appointed  by  the  Governor  of  the  State 

of  Virginia  for  the  State  of ,  [or  within  the  State,  or  a  notary 

public  for  the  county  of ]  do  hereby  certify  that  *  A  B,  whose 

name  is  signed  to  the  writing  above,  bearing  date  on  the day 

of ,  18 ,  has  acknowledged  the  same  before  me  at [or 

before  me  in  my  county]. 

Given  under  my  hand  and  official  seal,  this  day  of , 

18 .  [Signature  and  title.'} 

[Seal,  if  any.] 


'Iss. 


ACKNOWLEDGMENTS.  203 

VIRGINIA— CONTINUED. 

90.  Acknowledgment  by  a  married  woman. 

[As  in  the  preceding  form  to  the  *,  then  continue :]  and  C  B,  the 
wife  of  A  B,  whose  names  are  signed  to  the  writing  aboye,  bear- 
ing date  the day  of  ,  18 ,  personally  appeared  before 

me,  and  being  examined  by  me  privily  and  apart  from  her  husband, 
and  having  the  writing  aforesaid  fully  explained  to  her,  she,  the 
said  C  B,  acknowledged  the  said  writing  to  be  her  act,  and  declared 
that  she  had  willingly  executed  the  same,  and  does  not  wish  to  re- 
tract it. 

Given  under  my  hand  or  official  seal,  this day  of ,  one 

thousand  eight  hundred  and .  [Signature  and  title.] 

[tieal,  if  any.] 

f± 

WASHINGTON  TERRITORY. 

91.  Acknowledgment  by  husband  and  wife. 

TERRITORY  OF  WASHINGTON, 
County  of , 

On  this day  of ,  18 ,  before  me,  [here  give  name  and 

title  of  officer]  personally  came  A  B,  and  C  B,  his  wife,  to  me 
known  to  be  the  individuals  described  in  and  who  executed  the 
within  [or  foregoing]  conveyance,  and  severally  acknowledged 
that  they  signed,  sealed,  and  delivered  the  same  as  their  free  act 
and  deed,  for  the  uses  and  purposes  therein  mentioned ;  and  the 
said  C  B,  upon  an  examination  by  me,  separate  and  apart  from  her 
husband,  acknowledged  that  she  did  voluntarily,  of  her  own  free 
will,  and  without  the  fear  of  or  coercion  from  her  husband,  execute 
the  deed. 

Witness  my  hand,  [and  official  seal]  the  day  and  year  first  above 
written.  [Signature  and  title.] 

[Seal,  if  any.] 

[The  form  for  the  acknowledgment  of  a  single  grantor  is  the 
usual  one.] 

o 

WEST  VIRGINIA. 

92.  Acknowledgment  by  grantor. 

STATE,  [or  TERRITORY,  or  DISTRICT]  OP  WEST  VIRGINIA,  ) 
County  of ,  j 

I, ,  [name  and  style  of  officer]  do  certify  that ,  whose 

name  [or  names]  is  [or  are]  signed  to  the  writing  above,  [or  here- 
to annexed]  bearing  date  on  the day  of ,  has  [or  have] 

this  day  acknowledged  the  same  before  me,  in  my  said  •: . 

Given  under  my  hand,  this day  of  . 

[/Signature  and  title.] 


204  ACKNOWLEDGMENTS. 

WEST  VIRGINIA— CONTINUED. 

[This  form  is  prescribed  by  the  Code  of  West  Virginia,  p.  469. 
The  form  for  the  acknowledgment  of  a  married  woman  is  the 
same  as  that  for  Virginia.] 


WISCONSIN. 

93.  Acknowledgment  by  grantor. 

STATE  OF  WISCONSIN,  ) 
County  of  ,  f  ss> 

Be  it  remembered,  that  on  this day  of  ,  18 ,  before 

me,  [giving  name  and  title  of  officer]  personally  came  the  within 
named  A  B,  [and  C  B,  his  wife]  to  me  known  to  be  the  identical 
person  [or  persons]  described  in  and  who  executed  the  within  deed, 
[or  mortgage,  or  other  instrument]  and  acknowledged  the  same  to 
be  his  [or  their]  free  act  and  deed,  for  the  uses  and  purposes 
therein  mentioned. 

[If  without  the  jState,  add:]  In  testimony  whereof,  I  have  here- 
unto set  my  hand  and  seal,  the  day  and  year  first  above  written. 

[/Sea/.]  [ Signature  and  title.'} 

[Two  subscribing  witnesses  are  necessary  to  a  deed.  A  deed 
executed  out  of  the  State  may  be  executed  according  to  the  laws 
of  the  place  where  it  is  executed;  but  if  executed  in  the  United 
States,  and  not  acknowledged  before  a  Wisconsin  commissioner, 
there  must  be  annexed  a  certificate  by  a  clerk  of  a  Court  of  Record, 
to  the  authority  and  signature  of  the  officer,  and  to  the  fact  that 
the  deed  is  executed  and  acknowledged  in  conformity  with  the 
laws  of  the  place.] 

o 

CANADA. 

94.  Form  of  acknowledgment  in  Lower  Canada. 

(Province  of  Quebec.) 

On  the day  of ,  A.  D.  one  thousand  eight  hundred  and 

seventy ,  before  me,  A  B,  of  ,  [a  justice  of  the  peace  for 

the  county  of  ,  or  mayor  of  ,  or  a  notary  public  duly  ap- 
pointed and  sworn  for ]  personally  came  and  appeared  C  I), 

the  person  who  executed  the  foregoing  deed,  [power  of  attorney, 
or  other  instrument]  and  to  me  well-known  as  such,  who  then  and 
there  acknowledged  that  he  had  executed  the  same. 

Witness  my  hand  and  seal  at ,  on  the  day  and  year  first 

above  written.  A B .  [Seal.] 

[The  execution  of  deeds  of  lands  situated  in  this  province  by 
parties  residing  in  the  United  States  will  be  valid  if  executed  ac- 
cording to  the  laws  or  custom  of  the  locality  where  executed.  If 


ACKNOWLEDGMENTS.  205 

CANADA — CONTINUED.   •„ 

executed  in  presence  of  witnesses,  one  or  all  of  such  witnesses  must 
make  an  affidavit  of  the  authenticity  of  the  signatures  before  the 
mayor  or  chief  magistrate  of  the  locality,  who  must  give  a  certifi- 
cate to  that  effect,  which  certificate  should  then  be  authenticated 
by  the  nearest  British  consul.  All  such  matters,  as  the  number  of 
witnesses,  seals,  etc.,  may  be  governed  by  the  laws  of  the  place  of 
execution.  If  the  authenticity  of  any  such  deed  is  questioned,  it 
must  be  proved  by  evidence  taken  at  the  place  of  its  execution  by 
a  commissioner  appointed  by  the  Court.] 

95.  Form  of  acknowledgment    in  Upper  Canada. 

(Province  of  Ontario.) 
Proof  by  subscribing  witness. 

STATE  OF  ,  ) 

County  of ,   ) 

I,  \liere  insert  name,  residence,  additional  occupation  or  catting 
of  the  subscribing  witness  in  full']  make  oath  and  say:  1.  That  I 
was  present  and  did  see  the  within  [or  annexed]  deed  [mortgage 
or  other  instrument]  and  a  duplicate  thereof  [if  the  fact}  duly  ex- 
ecuted, signed,  sealed,  and  delivered,  by  A  B  and  C  D,  the  parties 
[or  two  of  the  parties]  thereto.  2.  That  the  said  instrument  and 

duplicate  were  executed  at .     3.  That  I  know  the  said  parties 

so  executing  the  said  instrument.  4.  That  I  am  a  subscribing  wit- 
ness to  the  said  execution  of  the  said  instrument  and  duplicate. 

[Signed']  E F . 

I,  G  H,  of,  etc.,  a  notary  public  within  and  for ,  [or  a  judge 

or  mayor,  etc.]  do  hereby  certify  that  the  above  named  affidavit 
was  duly  taken,  subscribed,  and  sworn  to  before  me  by  the  above 

nr.med  E  F,  on  the day  of  ,  A.  D.  18 ,  at  the of 

,  in  the  State  of . 

In  testimony  whereof,  I  have  hereunto  set  my  hand  and  affixed 
my  official  seal,  the  day  and  year  last  aforesaid. 

[Signature  and  title.~\ 

[Proof  of  deeds,  mortgages,  etc.,  for  registration,  is  to  be  made 
by  affidavit  on  the  instrument,  or  securely  attached  to  it,  as  follows : 
Within  the  Province,  before  any  commissioner  for  taking  affidavits, 
before  the  registrar  of  deeds  or  his  deputy,  or  before  a  judge  of 
any  of  the  Superior  Courts,  or  a  County  Court.  In  Great  Britain, 
before  a  judge  of  the  Superior  Courts,  or  of  a  County  Court,  or 
the  mayor  or  chief  magistrate  of  any  city,  borough,  or  town  corpo- 
rate, certified  under  the  common  seal  of  such  city,  etc.,  or  a  com- 
missioner appointed  for  taking  affidavits  in  any  of  the  Courts  of 
Record  of  the  Province.  In  any  foreign  country  [as  in  the  United 
States]  before  the  mayor  of  any  city,  borough,  or  town  corporate, 
certified  under  the  common  seal ;  or  before  any  British  consul  or 


206  ACKNOWLEDGMENTS. 

CANADA — CONTINUED. 

vice-consul  resident  in  such  country ;  or  before  a  judge  of  Court  of 
Record,  or  a  notary  public,  certified  under  his  official  seal. 

If  different  parties  sign  before  different  subscribing  witnesses, 
each  witness  must  make  an  affidavit  as  to  the  execution  by  the 
parties  whose  execution  he  attests,  or  the  deed  cannot  be  regis- 
tered.] 


VERIFICATION  OF  PLEADING. 

96.  As  used  in  New  York. 

COUNTY  OF  NEW  YORK,") 
City  of  New  York,  j  Sj 

George  Reed,  of  said  city,  being  duly  sworn,  says :  That  he  is  the 
plaintiff  [or  defendant]  in  the  above  entitled  action ;  that  the  fore- 
going complaint  [or  answer,  or  reply]  is  true  to  his  own  knowledge, 
except  as  to  those  matters  stated  therein  on  information  and  belief, 
and  as  to  those  matters  he  believes  it  to  be  true. 

GEORGE  REED. 

Sworn  to  before  me  this day  of  ,  18 . 

HOLLAND  SMITH, 
Notary  Public. 

97.  As  used  in  California. 

CITY  AND  COUNTY  OF  SAN  FRANCISCO,  ss. 

George  Reed,  being  duly  sworn,  deposes  and  says :  That  he  is  the 
plaintiff  [or  defendant]  in  the  above  entitled  action ;  that  he  has 
read  [or  heard  read]  the  foregoing  complaint,  [or  answer,  or  reply] 
and  knows  the  contents  thereof,  and  the  same  is  true  of  his  own 
knowledge,  except  as  to  those  matters  therein  stated  on  his  infor- 
mation and  belief,  and  as  to  those  matters  he  believes  it  to  be  true. 

GEORGE  REED. 

Subscribed  and  sworn  to  before  me  this day  of ,  18 . 

[Seal.]  HOLLAND  SMITH, 

Notary  Public. 

[A  party  who  swears  to  the  truth  of  a  pleading,  thereby  affirms 
a  knowledge  of  its  contents,  even  though  his  affidavit  does  not  con- 
tain the  statement  that  he  has  read  or  heard  it  read,  and  knows  the 
contents  thereof.  Patterson  v.  Ely,  19  Cal.  28.] 


98.  By  two  parties  not  united  in  interest. 

CITY  AND  COUNTY  OF  ,  ss. 

James  Jackson  and  John  Jones,  being  severally  duly  sworn,  each 
for  himself  deposes  and  says  :  That  he  is  one  of  the  above  named 

[207] 


208  AFFIDAVITS. 

plaintiffs  [or  defendants] ;  that  he  has  read  [or  heard  read]  the 
foregoing  complaint,  [or  answer,  or  reply]  and  knows  the  contents 
thereof,  and  the  same  is  true  of  his  own  knowledge,  except  as  to 
those  matters  therein  stated  on  information  and  belief,  and  as  to 
those  matters  he  believes  it  to  be  true.  JAMES  JACKSON, 

JOHN  JONES. 

Subscribed  and  sworn  to  before  me  this 'day  of  • -,  18 . 

HOLLAND  SMITH, 
Notary  Public. 


99.  Verification  by  an  attorney  or  agent. 

[The  codes  of  procedure,  in  the  modern  practice,  provide  for 
the  verification  of  a  pleading  by  the  attorney  in  fact  or  agent  of  a 
party  who  is  absent  from  the  county  where  the  pleading  is  veri- 
fied, when  such  attorney  or  agent  has  knowledge  of  the  facts,  ena- 
bling him  to  make  the  verification.] 

STATE  OF  ,  > 

County  of  ,  ) 

James  Reed,  being  duly  sworn,  deposes  and  says  [the  word  "  de- 
poses "  is  generally  inserted  in  California]  :  That  he  resides  in  the 
[city  and]  county  of  ,  and  is  the  agent  of  the  plaintiff  [or  de- 
fendant] in  the  above  entitled  action  ;  that  he  has  read  [or  heard 
read]  the  foregoing  complaint,  £or  answer,  or  reply]  and  knows  the 
contents  thereof,  and  the  same  is  true  of  his  own  knowledge,  except 
as  to  those  matters  therein  stated  on  information  and  belief,  and  as 
to  those  matters  he  believes  it  to  be  true ;  that  the  said  plaintiff 

[or  defendant]  is  absent  from  the  [city  and]  county  of ,  where 

his  attorney  resides ;  and  the  facts  are  within  the  knowledge  of  this 
affiant. 

[In  New  YbrJc,  and  some  other  States,  it  is  the  practice  to  state, 
after  this,  the  grounds  of,  the  deponent's  knowledge,  but  this  is  not 
required  in  California.]  '  JAMES  REED. 

Subscribed  and  sworn  to  before  me  this  day  of        — , 

187 .  HOLLAND  SMITH, 

Notary  Public. 


100.  By  agent  or  attorney  who  holds  note  or  bond. 

STATE  OF  , ) 

County  of  ,  j 

James  Reed,  being  duly  sworn,  deposes  and  says :  That  he  is  the 
attorney  [or  agent]  of  the  plaintiff  in  the  above  entitled  action, 
for  the  purpose  of  collecting  the  amount  sued  for  therein ;  that  the 
foregoing  complaint  is  true  of  his  own  knowledge,  [of  course,  it  is 
unnecessary  to  say  the  attorney  read  the  complaint,  if  he  has  drawn 
it\  except  as  to  those  matters  therein  stated  on  information  and  be- 
lief, and  as  to  those  matters  he  believes  it  to  be  true ;  that  the 
reason  this  verification  is  not  made  by  the  said  plaintiff  is  that  the 


AFFIDAVITS.  209 

action  is  founded  upon  a  written  instrument  for.  the  payment  of 
money  only,  and  such  instrument  is  in  the  possession  of  deponent ; 
from  which  said  instrument  and  statements  made  by  the  plaintiff 
to  deponent,  deponent's  knowledge  and  belief  are  derived. 

JAMES  REED. 

Subscribed  and  sworn   to  before  me   this  day  of    ., 

187 .  HOLLAND  SMITH, 

Notary  Public. 


FORMS  FOR  PROOF  OF  CLAIMS. 

101.   Deposition  for  proof  of  debt  in  bankruptcy  without  security. 

IN  THE  DISTRICT  COUKT  OF  THE  UNITED  STATES,  FOB  THE 

DISTRICT  OF . 

In  the  Matter  of      ~\ 

RICHARD  ROE,      >•  In  Bankruptcy. 

Bankrupt,  y 
District  of ,  ss. 

Be  it  remembered,  that  at ,  in  the  county  of and  State 

of ,  on  the  day  of ,  A.  D,  18 ,  before  me,  Holland 

Smith,  a  notary  public  for  the  State  of  California,  residing  in  the 
city  of  San  Francisco,  and  duly  commissioned  and  sworn,  person- 
ally came  James  Reed,  of  ,  in  the  county  of and  State 

of ,  and  made  oath  and  says :   That  the  said  Richard  Roe,  the 

person  against  whom  a  petition  for  adjudication  of  bankruptcy  has 
been  filed,  at  and  before  the  filing  of  the  said  petition,  was  and 

still  is  justly  and  truly  indebted  to  this  deponent  in  the  sum  of • 

dollars,  for  and  on  account  of  [here  insert  a  particular  account  of  the 
indebtedness']  which  is  the  true  consideration  for  said  indebtedness, 

no  part  of  which  has  been  paid ;  for  which  said  sum  of dollars, 

or  any  part  thereof,  this  deponent  says  that  he  has  not,  nor  has 
any  person  by  his  order,  or  to  this  deponent's  knowledge  or  belief, 
for  his  use,  had  or  received  any  manner  of  satisfaction  or  security 
whatsoever,  nor  lias  any  note,  or  other  evidence  of  indebtedness, 
ever  been  given  for  the  same. 

And  this  deponent  further  says :  That  the  said  claim  was  not 
procured  for  the  purpose  of  influencing  the  proceedings  under  the 
Act  of  Congress,  entitled,  "An  Act  to  establish  a  uniform  system 
of  bankruptcy  throughout  the  United  States,"  approved  March  2d, 
1867;  that  no  bargain  or  agreement,  express  or  implied,  has  been 
made  or  entered  into,  by  or  on  behalf  of  this  deponent,  to  sell, 
transfer,  or  dispose  of  said  claim,  or  any  part  thereof,  against  said 
bankrupt ;  or  to  take  or  receive,  directly  or  indirectly,  any  money, 
property,  or  consideration  whatever,  whereby  the  vote  of  this  de- 
ponent for  assignee,  or  any  action  on  the  part  of  this  deponent,  or 


NOTARIES — 14. 


210  AFFIDAVITS. 

any  other  person  in  the  proceedings  under  this  act,  has  been,  is,  or 
shall  be  in  any  way  affected,  influenced,  or  controlled. 

JAMES  REED, 
Deposing  Creditor. 

Subscribed  and  sworn  to  before  me,  this day  of ,  187 — . 

[Seal.']  HOLLAND  SMITH, 

Notary  Public. 


102.  Deposition  of  proof  of  debt  with  security. 

IN  THE  DISTRICT  COURT  ov  THE  UNITED  STATES,  FOR  THE  

DISTRICT  OP . 

In  the  matter  of          ) 

RICHARD  ROE,      >-  In  Bankruptcy. 
Bankrupt.  ) 

District ,  ss. 

Be  it  remembered,  that  at ,  in  the  county  of  and  State 

of  ,  on  the day  of  ,  A.  D.  18 ,  befoi'e  me,  Holland 

Smith,  a  notary  public  for  the  State  of  California,  residing  in  the 
city  of  San  Francisco,  and  duly  commissioned  and  sworn,  person- 
ally came  James  Reed,  of ,  in  the  county  of  -  — ,  and  State  of 

,  and  made  oath,  and  says :  That  the  said  Richard  Roe,  the 

person  against  whom  a  petition  for  adjudication  of  bankruptcy  lias 
been  filed,  at  and  before  the  filing  of  the  said  petition,  was,  and 
still  is,  justly  and  truly  indebted  to  this  deponent  [or  the  firm  of 
Reed  &  Co.,  composed  of  this  deponent  and  James  Smith,  doing 

business  at J  in  the  sum  of dollars,  for  which  said  sum 

of dollars,  or  any  part  thereof,  this  deponent  has  not,  nor  has 

any  person  by  his  order,  or,  to  this  deponent's  knowledge  or  be- 
lief, for  his  use,  had  or  received  any  manner  of  satisfaction  or 
security  whatsoever,  save  and  except  the  notes  [or  mortgage,  etc.] 
hereinafter  mentioned ;  that  the  said  claim  was  not  procured  for 
the  purpose  of  influencing  the  proceedings  under  the  act  of 
Congress,  entitled  "  An  'Act  to  establish  a  uniform  system  of  bank- 
ruptcy throughout  the  United  States,"  approved  March  2d,  1867  ; 
that  no  bargain  or  agreement,  express  or  implied,  has  been  made 
or  entered  into,  by  or  on  behalf  of  this  deponent,  to  sell,  transfer, 
or  dispose  of  said  claim,  or  any  part  thereof,  against  said  bankrupt ; 
or  to  take  or  receive,  directly  or  indirectly,  any  money,  property, 
or  consideration  whatever,  whereby  the  vote  of  this  deponent,  or 
any  other  person,  in  the  proceedings  under  said  act,  has  been,  is,  or 
shall  be,  in  any  way  affected,  influenced,  or  controlled.  [Here  insert 
fa  particular  description  of  the  debt ;  also,  of  the  security,  and  the 
estimated  value  of  property  held  as  security.  Jf  there  are  notes, 
the  originals  should  be  attached.]  JAMES  REED, 

Deposing  Creditor. 

Subscribed  and  sworn  to  before  me  this  day  of  -    — , 

187 .  HOLLAND  SMITH, 

[Seal.]  Notary  Public. 


AFFIDAVITS.  211 

[An  agent  or  attorney  may  make  proof  of  debt,  and  when  he 
does  so,  after  the  concluding  paragraph  add  in  the  forms:  "And 
this  deponent  further  says :  That  he  is  duly  authorized  by  his  prin- 
cipal to  make  this  affidavit ;  and  that  it  is  within  his  knowledge 
that  the  aforesaid  debt  was  incurred  as  and  for  the  consideration 
above  stated,  and  that  such  debt,  to  the  best  of  his  knowledge  and 
belief,  still  remains  unpaid  and  unsatisfied."  See  U.  S.  Rev.  Stat. 
Sec.  5078.  By  Act  of  Congress  June  22d,  1874,  notaries  are 
authorized  to  take  proof  of  debts  in  bankruptcy.] 


103.  Proof  of  claim,  against  estates. 

STATE  OF  , ) 

r(                 c  >•  SS. 

County  of  ,  j 

James  Reed,  of  the ,  in  the  county  aforesaid,  being  duly 

sworn,  deposes  and  says :  That  the  foregoing  claim  against  the 
estate  of  Richard  Roe,  deceased,  is  justly  due  and  owing  this  de- 
ponent ;  that  no  payments  have  been  made  thereon  which  are  not 
credited,  and  that  there  are  no  offsets  against  the  same,  to  the 
knowledge  of  this  deponent.  JAMES  REED. 

Subscribed  and  sworn  to  before  me  this day  of ,  187 — . 

HOLLAND  SMITH, 
Notary  Public. 


104.     Affidavit  required  of  pre-emption  claimant  under  Land 
Laws  of  t/ie  United  States. 

I, ,  claiming  the  right  of  pre-emption,  under  Sec.  2259  of 

the  Revised  Statutes  of  the  United  States,  to  the  quarter  of 

section  of  number ,  of  township  number ,  of  range  num- 
ber   ,  subject  to  sale  at ,  do  solemnly  swear  [or  affirm]  that 

I  have  never  had  the  benefit  of  any  right  of  pre-emption  under 
said  section ;  that  I  am  not  the  owner  of  three  hundred  and  twenty 
acres  of  land  in  any  State  or  Territory  of  the  United  States,  nor 
have  I  settled  upon  and  improved  said  land  to  sell  the  same  on 
speculation,  but  in  good  faith  to  appropriate  it  to  my  own  exclusive 
use  and  benefit ;  and  that  I  have  not,  directly  or  indirectly,  made 
any  agreement  or  contract,  in  any  way  or  manner,  with  any  person 
or  persons  whomsoever,  by  which  the  title  which  I  may  acquire 
from  the  Government  of  the  United  States  should  inure,  in  whole 
or  in  part,  to  the  benefit  of  any  person  except  myself. 

[  Claimants  signature.] 

I, ,  of  the  Land  Office  at ,  do  hereby  certify  that  the  above 

affidavit  was  taken  and  subscribed  before  me,  this day  of , 

A.  D.  J.  o  * "   •  "~  •  ™ -• 

[By  Sec.  2262,  Rev.  Stat.  U.  S.,  the  claimant  is  required  to  make 
this  affidavit  before  the  receiver  or  register  of  the  land-district  in 


212  AFFIDAVITS. 

which  the  land  is  situated.  And  it  is  the  duty  of  the  officer  ad- 
ministering such  oath,  to  file  a  cei-tificate  thereof  in  the  public 
land  office  of  such  district,  and  to  transmit  a  duplicate  copy  to  the 
General  Land  Office,  either  of  which  shall  be  good  and  sufficient 
evidence  that  such  oath  was  administered  according  to  law.] 


105.  Proof  by  persons  of  respectability  who  are  acquainted  with 

the  claimant. 

We, , ,  do  solemnly  swear  that [here  state  the  per- 
sonal qualifications  prescribed  in  Sec.  2259  of  llev.  Stat.,  that  the 
person  is  the  head  of  a  family,  or  widow,  or  single  person  over  the 
age  of  twenty-one  years,  and  citizen  of  the  United  States,  or  has 

filed  his  intention  to  become  such~]  and  is  an  inhabitant  of  the 

quarter-section,  number ,  of  township  number ,  of  range 

number ,  and  that  no  other  person  resided  upon  the  said  land, 

entitled  to  the  right  of  pre-emption.     That  the  said entered 

upon  and  made  settlement  in  person  on  the  said  land  since  the  — 

day  of ,  18 ,  to  wit,  on  the day  of  ,  18 ;  and 

has  lived  in  the  said  house,  and  made  it  his  exclusive  home,  from 

the day  of ,  18 ,  until  the  present  time.     That  he  did 

not  remove  from  his  own  land  within  the  State  of ,  to  make 

the  settlement  above  referred  to ;  and  that  he  has  since  said  settle- 
ment plowed,  fenced,  and  cultivated  about acres  of  said  land. 


I, ,  do  hereby  certify  that  the  above  affidavit  was  taken  and 

subscribed  before  me  this day  of ,  A.  D.  18 . 


We  certify  that , ,  whose  names  are  subscribed  to  the 

foregoing  affidavit,  are  persons  of  respectability. 

,  Register. 

,  Receiver. 


106.  Affidavit  for  claimant  of  homestead. 

LAND  OFFICE  AT , ") 

[JJate']   187 .  j 

I, ,  of ,  having  filed  my  application,  No. ,  for  an  entry 

under  Section  2289  of  the  Revised  Statutes  of  the  United  States, 
do  solemnly  swear  that  [here  state  whether  the  applicant  is  the  head 
of  a  family,  or  over  twenty-one  years  of  age ;  whether  a  citizen 
of  the  United  States,  or  has  filed  his  declaration  of  intention  of  be- 
coming such ;  or,  if  under  twenty-one  years  of  age,  that  he  has 
served  not  less  than  fourteen  days  in  the  army  or  navy  of  the 

United  States  during  actual  war  ;  that  said  application  JVo. is 

made  for  his  or  her  exclusive  benefit;  and  that  said  entry  is  made  for 


AFFIDAVITS.  213 

the  purpose  of  actual  settlement  or  cultivation,  and.  not  directly  or 
indirectly,  for  the  use  or  benefit  of  any  other  person  or  persons 
whomsoever]  and  that  I  have  not  heretofore  had  the  benefit  of 
this  act. 

Sworn  to  and  subscribed  this day  of ,  before 


Register  [or  Receiver.] 

107.  Affidavit  for  soldier's  homestead. 

LAJTD  OFFICE  AT , ) 

[Date]   ,  187 .f 

I) ,  of  — : — ,  do  solemnly  swear  that  I  am  a of  the  age 

of  twenty-one  years,  and  a  citizen  of  the  United  States;  that  I 

served  for  ninety  days  in  Company  , Regiment,  United 

States  Volunteers ;    that  I  was  mustered  into  the  United  States 

military  service  the day  of ,  and  was  honorably  discharged 

therefrom  on  the day  of ;  that  I  have  since  borne  true 

allegiance  to  the  Government ;  and  that  I  have  made  my  applica- 
tion, No. ,  to  enter  a  tract  of  laud,  under  Section  2304  of  the 

Revised  Statutes  of  the  United  States,  giving  homesteads  to  honor- 
ably discharged  soldiers  and  sailors,  their  widows  and  orphan  chil- 
dren ;  that  1  have  made  said  application  in  good  faith  ;  and  that  I 
take  said  homestead  for  the  purpose  of  actual  settlement  and  culti- 
vation, and  for  my  own  exclusive  use  and  benefit,  and  for  the  use 
and  benefit  of  no  other  person  or  persons  whomsoever;  and  that  I 
have  not  heretofore  acquired  a  title  to  a  tract  of  land  under  the 
homestead  laws,  or  voluntarily  relinquished  or  abandoned  an  entry 
heretofore  made  under  said  laws :  So  help  me  God. 

Sworn  to  and  subscribed  before  me, ,  Register  of  the  Land 

Office  at ,  this day  of  ,  187 . , 

Register. 


108.   Affidavit  for  Indian  Homestead  under  Act  of  March  3d,  1875. 

I, ,  of  ,  having  filed  my  application,  No.  ,  for  an 

entry  under  the  provisions  of  the  Act  of  Congress  of  Mai-ch  3d, 

1875,  do  solemnly  swear  that  I  am  an  Indian,  formerly  of  the 

tribe  ;  that  I  was  born  in  the  United  States ;  that  I  have  abandoned 
my  relations  with  that  tribe  and  adopted  the  habits  and  pursuits  of 
civilized  life  ;  [here  state  whether  the  applicant  is  tioenty-one  years 
of  age,  or  the  head  of  a  family]  that  I  desire  said  land  for  the 
purpose  of  actual  settlement  and  cultivation,  and  not  directly  or 
indirectly  for  the  use  or  benefit  of  any  person  or  persons  whomso- 
ever ;  and  that  I  have  not  heretofore  had  the  benefit  of  said  act. 

Sworn  to  and  subscribed  before  me   this  day  of   , 

187 ...  , 

Register  [or  Receiver]. 


214  AFFIDAVITS. 

109.  Corroborative  affidavit — Indian  Homestead. 

We, ,  and  ,  do  solemnly  swear  that   we  are  well  ac- 
quainted with ,  and  know  that  he  is  an  Indian,  formerly  of  the 

tribe ;  that  he  was  born  in  the  United  States ;   that  he  has 

abandoned  his  relations  with  that  tribe,  and  adopted  the  habits  and 
pursuits  of  civilized  life  [here  state  that  he  is  twenty-one  years  of 
age,  or  if  not,  the  head  of  a  family.']  — . 

Sworn  to  and  subscribed  before  me  this  day  of   , 

187 .  . 


110.  Affidavit  of  applicant  for  a  patent. 

NOTE. — The  Revised  Statutes  of  the  United  States,  Sec.  4892, 
require  the  applicant  for  a  patent  to  make  oath  "  that  he  does  verily 
believe  himself  to  be  the  original  and  first  inventor  and  discoverer 
of  the  art,  machine,  manufacture,  composition,  or  improvement  for 
which  he  solicits  a  patent ;  that  he  does  not  know  and  does  not  be- 
lieve that  the  same  was  ever  before  known  or  used ;  and  shall  state 
of  what  country  he  is  a  citizen.  Such  oath  may  be  made  before 
any  person  within  the  United  States  authorized  by  law  to  administer 
oaths,  or,  when  the  applicant  resides  in  a  foreign  country,  before  any 
minister,  charge  d'affaires,  consxil,  or  commercial  agent,  holding 
commission  under  the  Government  of  the  United  States,' or  before 
any  notary  public  of  the  foreign  country  in  which  the  applicant 
may  be." 

In  regard  to  this,  the  Attorney-General,  in  September,  1861,  at 
the  request  of  Caleb  B.  Smith,  Secretary  of  the  Interior,  gave  his 
opinion  that  the  oath  must  be  taken  personally  by  the  applicant, 
and  not  by  his  agent.  He  says  :  "  The  oath  required  is  eminently 
one  of  substance.  It  compels  the  applicant  to  assert  two  facts 
Avhich  necessarily  can  only  be  within  his  personal  knowledge,  viz : 
that  he  believes  that  he  ft  the  original  inventor  of  the  thing  pro- 
posed to  be  patented,  and  that  he  does  not  know  or  believe  that  the 
same  was  ever  before  known  or  used.  It  is  impossible  that  these 
facts  can  be  originally  known  to  any  one  but  the  inventor,  and  if 
they  are  sworn  to  by  his  agent  or  attorney,  the  evidence  is  nothing 
but  hearsay."  10  Attorney-Gen.  Op.  140. 

STATE  OF  ,  ) 

County  of  ,  j  Si 

A  13,  the  above  named  petitioner,  being  duly  sworn,  [or  affirmed] 
deposes  and  says :  That  he  verily  believes  himself  to  be  the  original 
and  first  inventor  of  the  improvement  in  seed-drills,  [or  whatever 
the  invention  may  be]  described  and  claimed  in  the  foregoing  speci- 
fication ;  and  he  does  not  know  and  does  not  believe  that  the  same 

was  ever  known  or  used ;  and  that  he  is  a  citizen  of  ,  and  a 

resident  of  .  A  B. 

Sworn  to  and  subscribed  before  me  this day  of ,  18 . 

? 
Notary  Public. 


Forms  Required  in  Taking  Depositions. 


Officers  taking  depositions  under  a  commission  should  be  very 
careful  to  execute  the  duty  carefully,  or  otherwise  the  commission 
will  be  a  nullity  when  returned  into  Court.  As  evidence  in  the 
form  of  depositions  is  an  innovation  on  common-law  procedure, 
and  is  admitted  on  statutory  enactments,  Courts  are  very  strict  in 
seeing  that  the  requirements  of  the  statute  have  been  duly  observed. 
In  late  times,  this  kind  of  evidence  is  very  frequently  produced, 
and  it  is  therefore  very  desirable,  in  a  work  of  this  character,  to 
give  abstracts  of  the  statutory  directions  in  the  various  States,  with 
approved  forms,  for  the  guidance  of  notaries,  and  others  who  are 
empowered  to  take  depositions.  I  shall  therefore  examine  the  pro- 
visions of  each  State,  and  give  a  brief  and  accurate  synopsis  of  the 
statute  under  each,  and  the  required  forms.  In  each  instance,  the 
latest  compilation  or  revision  of  the  statutes  will  be  referred  to. 
Before  executing  a  commission,  it  would  be  well  to  refer  to  the 
sixth  chapter,  where  the  law  is  given  relating  to  the  execution  and 
return  of  the  commission. 


ALABAMA, 

The  testimony  of  witnesses  resident  without  the  State,  or  who 
are  about  to  remove  from  the  State,  or  where  the  witness  is 
a  female,  or,  from  infirmity,  or  age,  or  sickness,  is  unable  to 
attend  Court,  or  resides  more  than  a  hundred  miles  from  the  place 
of  trial,  or  where  the  witness  is  Governor  of  a  State,  or  a  State 
official,  or  of  a  profession  or  calling  such  as  to  prevent  attendance 
at  the  place  of  trial,  may  be  taken  by  interrogatories.  It  is  the 
duty  of  the  commissioner  to  reduce  the  answers  of  the  witness  to 
writing,  or  cause  it  to  be  done  by  the  witness,  or  some  impartial 
person,  as  near  as  may  be  in  the  language  of  the  witness,  having 
first  sworn  him  to  speak  the  truth,  the  whole  truth,  and  nothing  but 
the  truth ;  and  when  completed,  the  deposition  must  be  read  over 
to  the  witness,  and  by  him  subscribed.  After  the  signature,  the 
commissioner  appends  a  certificate  of  the  manner,  tune,  and  place 

[215] 


216  DEPOSITIONS. 

ALABAMA — COXTINTJED. 

of  taking  the  deposition,  as  in  the  form  following,  and  signs  it. 
The  package  may  be  sent  by  mail  or  private  conveyance,  sealed  and 
directed  to  the  clerk  of  the  Court.  Rev.  Code,  Sees.  2716-2730. 


111.  Form  of  caption  and  certificate 

JOHN  DOE 

v. 
RIOUAED  ROE. 

I, ,  one  of  the  commissioners  named  in  the  annexed  com- 
mission, caused  to  come  before  me  at ,  in  the  county  of , 

State  of ,  C  D,  a  witness  examined  by  the  plaintiff  in  the  an- 
nexed stated  cause,  and  having  sworn  him,  or  affirmed  him,  on  the 
Holy  Evangelists,  the  truth  to  speak,  the  whole  truth  and  nothing 
but  the  truth,  he  deposes  and  says  as  follows  : 

1.  To  the  first  interrogatory,  lie  saith: 

[Here  icrite  the  answer  in  the  language  of  the  witness.'] 

If  there  are  cross  or  rebutting  interrogatories,  proceed  in  the 
same  manner.  And  let  the  witness  sign,  after  which  the  commis- 
sioner or  commissioners  then  add  the  following: 

I, ,  said  commissioner,  hereby  certify  that  I  caused  to  come 

before  me  at  [stating  full  address]  the  above  named  witness,  C  D; 
that  he  was  duly  sworn  and  examined ;  that  his  evidence  was  taken 
down  as  near  as  may  be  in  his  own  language,  and  was  read  over  to 
him,  and  by  him  subscribed  in  my  presence,  and  that  the  identity 
of  the  said  witness  is  known  to  me  [or  has  been  made  known  to  me 
by  proof  made  by  E  F]  as  the  same  person  named  in  the  inter- 
rogatories and  the  commission  annexed. 

As  witness  my  hand  and  seal,  this day  of ,  A.  D.  18 . 

The  title  and  names  ot  parties  are  indorsed,  and  the  packet 
Bealed,  and  the  commissioner  should  write  his  name  across  the  seals. 


ARIZONA. 

In  the  Territory,  a  deposition  in  civil  cases  may  be  taken  of  a 
party  to  the  action,  of  a  witness  residing  more  than  fifty  miles  from 
the  place  of  trial,  of  a  witness  about  to  leave  the  county  who  may 
be  absent  at  time  of  trial,  and  of  a  witness  too  infirm  to  attend 
the  trial.  The  deposition,  when  completed,  shall  be  carefully  read 
to  the  witness,  and  corrected  by  him  in  any  particular,  if  desired ; 
it  shall  then  be  subscribed  by  the  witness,  certified  by  the  officer, 
inclosed  in  an  envelope  or  wrapper,  sealed,  and  directed  to  the 
clerk  of  the  Court  in  which  the  action  is  pending.  Comp.  Laws, 
p.  449. 

The  deposition  of  a  witness  out  of  the  Territory  may  be  taken 


DEPOSITIONS.  217 

ARIZONA— CONTINUED.     *- 

by  a  person  upon  whom  the  parties  agree,  or  when  they  do  not, 
it  is  directed  to  any  judge  or  justice  of  the  peace,  selected  by  the 
officer  granting  the  commission,  or  to  a  commissioner  for  the  Ter- 
ritory. The  commission  shall  authorize  the  commissioner  to  ad- 
minister an  oath  to  the  witness,  and  to  take  his  deposition  in  answer 
to  the  interrogatories,  and  to  certify  the  deposition  to  the  Court  in 
a  sealed  envelope,  directed  to  the  clerk  or  other  person  agreed  upon. 
Comp.  Laws,  p.  450. 

The  form  given  for  California  may  be  used. 


ARKANSAS. 

Depositions  may  be  taken  out  of  the  State,  before  a  commissioner 
appointed  by  the  Governor  thereof,  a  judge  of  a  Court,  a  justice  of 
the  peace,  mayor  of  a  city,  notary  public,  or  any  other  person  em- 
powered by  a  commission  directed  to  him.  A  certificate  of  the 
official  character  of  the  officer  taking  a  deposition  out  of  the  State 
is  required,  attested  under  the  seal  of  State.  Gantt's  Dig.  p.  499. 

Neither  party  can  be  present,  unless  both  are  represented,  or  the 
opposite  party  has  had  seasonable  notice :  p.  501. 

The  officer  before  whom  a  deposition  is  taken  shall  decide,  sum- 
marily, ail  objections  to  questions ;  but  in  matters  of  doubt  shall 
permit  the  questions  to  be  answered,  noting  the  objection  in  the 
deposition.  The  statement  must  be  written  by  the  officer,  or  by 
the  witness  in  his  presence.  The  officer  must  certify  the  time  and 
place  of  taking  the  deposition,  that  the  witness  was  duly  sworn 
before  he  gave  his  testimony,  and  that  his  testimony  was  written,  and 
read  to,  and  subscribed  by  him,  in  the  presence  of  the  officer.  He 
must  also  state  by  whom  it  was  written,  and  which  of  the  parties, 
in  person,  or  by  agent  or  attorney,  was  present  at  the  examination 
of  the  witness.  The  depositions,  when  completed,  must  be  sealed 
up  by  the  officer  and  directed  to  the  clerk  of  the  Court  before 
whom  the  action  is  pending,  with  an  indorsement  thereon,  showing 
them  to  be  depositions,  and  the  style  of  the  case.  They  must  then 
be  either  delivered  or  mailed  to  the  clerk  by  the  officer  taking 
them,  except  that  when  taken  out  of  the  State  they  may  be  de- 
livered to  the  party  taking  the  same,  his  agent  or  attorney,  to  be 
by  him  delivered ;  such  person  so  delivering  them  being  required 
to  take  an  oath  that  they  have  not  been  opened  by  him,  or  other 
person,  to  his  knowledge.  Gantt's  Dig.  Sees.  2578-2581. 


112.  Form  of  caption  and  certificate. 

The  deposition  of ,  taken  on  the  day  of ,  18 , 

at  the  office  of ,  in  the ,  \gimng  full  address]  to  be  read  in 

evidence  in  an  action  between  John  Doe,  plaintiff,  and  Richard 
Roe,  defendant,  pending  in  the  Court  of  ,  County,  Ar- 
kansas. 


218  DEPOSITIONS. 

ARKANSAS— CONTINUED. 

Certificate. 

STATE  OP  AKKANSAS,  ") 

County  of  ,  £ 

I, ,  a  notary  public  in  and  for  said  county,  do  certify  that 

the  foregoing  deposition  of  was  taken  before  me,  and  was 

read  to  and   subscribed  by  him  in  my  presence,  at  the  time  and 

place  mentioned  in  the'  caption,  the  said  having  been  fir,-.t 

sworn  by  me  that  the  evidence  he  should  give  in  the  action  should 
be  the  truth,  the  whole  truth,  and  nothing  but  the  truth  ;  and  his 
statements  were  reduced  to  writing  by  me  in  his  presence,  [or  by 
him  in  my  presence]  the  plaintiff  alone  being  present  at  the 
examination  [or  the  defendant,  or  both,  or  neither,  in  person  or  by 
attorney,  as  the  case  may  be]. 

Witness  my  hand  and  seal  of  office,  at ,  on  this day  of 

ic 

,    j.u—        .  . 


CALIFORNIA. 

Commissions  for  taking  the  depositions  of  witnesses  out  of  the 
State  are  issued  from  the  Court  in  which  the  action  is  pending. 
They  can  be  taken  by  a  commissioner  of  the  State,  or  by  any  per- 
son agreed  upon  by  the  parties.  When  the  parties  cannot  agree, 
the  commission  is  issued  to  any  judge,  or  justice  of  the  peace,  or 
commi>sioner  selected  by  the  officer  issuing  the  commission.  Code 
of  Proced.  Sec.  2024. 

The  examination  of  the  witness  need  not  be  in  answer  to  written 
interrogatories  in  respect  to  the  question  in  dispute,  if  the  parties 
so  agree.  The  officer  is^required  to  certify  the  deposition  to  the 
Court  in  a  sealed  envelope,  directed  to  the  clerk,  or  other  persons 
designated  or  agreed  upon,  and  forwarded  to  him  by  mail,  or  other 
usual  channel  of  conveyance.  Code  of  Proced.  Sec.  2026. 


113.  Form  of  caption  and  certificate. 

Deposition  of ,  a  witness  sworn  and  examined  under  and  by 

virtue  of  a  commission  issued  out  of  the Court  of ,  in  and 

for  the  county  of ,  in  the  State  of  California,  in  a  certain  cause 

therein  pending  between  John  Doe,  plaintiff,  and  Richard  Roe, 
defendant. 

,  of  [state  residence  of  witness]  being  duly  sworn  to  speak 

the  truth,  the  whole  truth,  and  nothing  but  the  truth,  deposes  and 
says  as  follows : 

To  the  first  interrogatory  he  says,  etc. 


DEPOSITIONS.  219 

CALIFORNIA—  CONTINUED.  -. 
Certificate. 

STATE  OP  CALIFORNIA,  > 
County  of ,  j" 

I,  Holland  Smith,  the  commissioner  named  in  the  said  commis- 
sion, do  hereby  certify  that  the  witness appeared   before  me, 

and,  after  being  duly  sworn,  his  evidence  was  taken  down,  and  read 
over  and  corrected  by  him,  after  which  he  subscribed  the  same  in 

my  presence,  on  the  — —  day  of  ,  18 ,  at  my  office,  309 

Montgomery  Street,  in  the  city  and  county  of  San  Francisco,  and 
that  I  have  personal  knowledge  of  the  said  witness  [or  proof  was 
made  of  his  identity]. 

In  witness  whereof,  I  have  hereunto  set  my  hand  and  official  seal, 
the  day  and  year  aforesaid.  HOLLAND  SMITH, 

[/Seal.]  Notary  Public. 


COLORADO. 

Depositions  out  of  the  State  may  be  taken  on  commission  issued 
to  any  number  of  persons  not  exceeding  three,  or  to  any  judge  or 
justice  of  the  peace  of  the  county  where  such  witness  may  reside. 
Rev.  Stat,  p.  311. 

Before  examination,  the  witness  shall  be  sworn,  or  affirmed,  to 
testify  the  truth  in  relation  to  the  matter  in  controversy  so  far  as 
he  or  she  may  be  interrogated,  and  then  the  answers  of  such  wit- 
ness in  response  to  the  interrogatories  shall  be  written  down,  and 
signed  by  such  witness ;  after  which  it  shall  be  the  duty  of  the 
person  or  persons  taking  the  deposition  to  annex  at  the  foot  there- 
of a  certificate  subscribed  by  him  or  them,  stating  that  it  was  sworn 
to  and  signed  by  the  deponent,  and  the  time  and  place  where  the 
same  was  taken ;  and  the  depositions  and  exhibits,  together  with 
the  commission,  shall  be  inclosed,  sealed  up,  and  directed  to  the 
clerk  of  the  Court  wherein  the  action  is  pending,  with  the  names  of 
the  parties  litigant  indorsed  thereon. 

When  a  judge  or  justice  of  the  peace  acts  as  a  commissioner,  his 
official  character  must  be  certified  to  under  the  great  seal  of  the 
proper  Court  of  the  county  or  city  where  such  deposition  is  taken. 
Rev.  Stat.  p.  313. 

The  form  for  Arkansas  may  be  used,  certifying  that  the  witness 
was  sworn  to  testify  the  truth  in  relation  to  the  matter  in  contro- 
versy, as  the  statute  above  requires. 


CONNECTICUT. 

When  any  witness  in  a  civil  action  lives  out  of  the  State,  or  more 
than  twenty  miles  from  the  place  of  trial,  is  going  to  sea,  or  out  of 
the  State,  is  sixty  years  old,  or  by  age  or  infirmity  is  unable  to 


220  DEPOSITIONS. 

CONNECTICUT—CONTINUED. 

travel  to  Court,  or  is  confined  to  jail,  his  deposition  may  be  taken 
by  a  judge  of  any  Court,  justice  of  the  peace,  notary  public,  or 
commissioner  of  the  Superior  Court.  Depositions  may  be  taken  in 
any  other  State  or  country  by  a  notary  public,  commissioner  ap- 
pointed by  the  Governor  of  this  State,  or  any  magistrate  having 
power  to  administer  oaths.  All  witnesses  giving  depositions  shall 
be  cautioned  to  speak  the  whole  truth,  and  carefully  examined, 
and  shall  subscribe  their  depositions,  and  make  oath  before  the 
officer,  who  shall  attest  the  same,  and  certify  that  the  adverse  party 
or  his  agent  was  present,  (if  so)  or  that  he  was  notified,  and  shall 
also  certify  the  reason  of  taking  such  deposition.  He  shall  then 
seal  it  up,  direct  it  to  the  Court  where  it  is  to  be  used,  and  deliver 
it,  if  desired,  to  the  party  at  whose  request  it  was  taken.  The 
official  character  of  the  magistrate  taking  the  deposition,  if  a  notary 
or  Connecticut  commissioner,  is  proved  by  his  seal.  The  official 
character  of  a  justice  of  the  peace  must  be  proved  by  a  certificate 
under  seal  of  the  Court,  the  clerk  of  which  is  the  keeper  of  record 
of  the  appointment  of  justices,  unless  waived  by  the  adverse  party. 
Any  deposition  written,  drawn  up,  or  dictated  by  the  party,  his 
attorney,  or  any  person  interested,  or  that  shall  be  returned  to  Court 
unsealed,  or  with  the  seal  broken,  shall  be  rejected  by  the  Court. 
Rev.  Stat.  of  1875,  pp.  435,  436. 


114.  Certificate  of  deposition. 

STATE  OF  CONNECTICUT,  ) 
County  of ,  }  Si 

The day  of ,  A.  D.  18 .     Then  personally  appeared 

the  above  named  A  B,  signer  of  the  foregoing  deposition,  and  after 
having  been  duly  cautioned  to  speak  the  whole  truth,  and  carefully 
examined,  did  subscribe  the  same  and  make  oath  before  me  that  the 
same  contains  the  truth,  the  whole  truth,  and  nothing  but  the  truth. 

The  foregoing  deposition  is  taken  pursuant  to  the  annexed  notice 
at  the  request  of  the ,  to  be  read  on  the  trial  of  an  action  pend- 
ing before  the Court,  within  and  for  the  county  of and 

State  of  Connecticut,  in  which  action  John  Doe  is  plaintiff,  and 
Richard  Roe  defendant. 

The  cause  of  taking  the  deposition  is  [stating  the  cause].  The 
adverse  party  was  notified  to  be  present  at  the  taking  of  this  dep- 
osition, and  was  present  thereat  [or  as  the  case  may  be]. 


DAKOTA. 

Depositions  may  be  taken,  in  this  Territory,  before  a  judge  or 
clerk  of  either  the  Supreme,  the  District,  or  County  Court,  before 
a  justice  of  the  peace,  notary  public,  mayor,  or  chief  magistrate  of 
any  city  or  town  corporate,  or  before  a  master,  commissioner,  or 


DEPOSITIONS.  221 

DAKOTA— CONTINUED. 

any  person  employed  by  a  special  commission, -but  depositions 
taken  in  this  Territory,  to  be  used  therein,  must  be  taken  by  an 
officer  or  person  whose  authority  is  derived  within  the  Territory. 
Depositions  may  be  taken  out  of  the  Territory  by  a  judge,  justice, 
or  chancellor  of  any  Court  of  Record,  a  justice  of  the  peace,  notary 
public,  mayor,  chief  magistrate  of  any  city  or  town  corporate,  a 
commissioner  appointed  by  the  governor  of  this  Territory  to  take 
depositions,  or  any  person  authorized  by  a  special  commission  from 
this  Territory.  The  depositions  must  be  written  in  the  presence  of 
the  officer  taking  the  same,  either  by  the  officer,  the  witness,  or 
some  disinterested  person,  and  subscribed  by  the  witness.  The  dep- 
osition so  taken  shall  be  sealed  up  and  indorsed  with  the  title  of 
the  cause  and  the  name  of  the  officer  taking  the  same,  and  by  him 
addressed  and  transmitted  to  the  clerk  of  the  Court  where  the 
action  or  proceeding  is  pending,  or  to  the  justice,  mayor,  or  other 
judicial  officer,  arbitrator,  or  referees,  if  the  action  or  proceeding  is 
pending  before  them.  The  officer,  if  he  has  a  seal,  may  certify 
himself  to  his  official  character ;  but  if  he  have  none,  it  must  be 
certified  to  by  the  secretary  or  other  officer  of  State,  or  par'ol  proof 
must  be  offered  as  to  his  official  character.  The  officer  shall  annex 
to  the  deposition  a  certificate  showing  that  the  witness  was  first 
sworn  to  testify  the  truth,  the  whole  truth,  and  nothing  but  the 
truth ;  that  the  deposition  was  reduced  to  writing  by  some  person 
[naming  him]  ;  that  the  deposition  was  written  and  subscribed  in 
the  presence  of  the  officer  certifying  thereto ;  that  the  deposition 
was  taken  at  the  time  and  place  specified  in  the  notice.  Laws  of 
1872-3,  pp.  16-17. 


DELAWARE. 

If  it  appear  by  affidavit  that  there  is  a  material  witness  residing 
out  of  the  county,  whose  attendance  it  is  not  practicable  to  procure, 
the  justice  may  make  a  rule  that  his  deposition  shall  be  taken  by  a 
commissioner  named  by  him.  ****** 
The  justice  shall  forward  a  copy  of  the  rule  and  the  questions  to 
the  commissioner,  with  a  copy  of  this  section.  The  deposition  must 
be  taken  in  writing,  signed  by  the  witness,  certified  by  the  commis- 
sioner, and  sent,  sealed  up,  to  the  justice.  The  witness  must  first 
be  sworn  or  affirmed  by  the  commissioner,  to  answer  the  questions 
truly ;  neither  party  shall  be  present  at  the  taking  of  the  deposi- 
tion, and  no  question  shall  be  put  but  those  sent  by  the  justice. 
Rev.  Code  of  1874,  p.  6^0. 


115.  Form,  of  caption  and  certificate. 

Deposition  of   witness   sworn  [or  affirmed]  and  examined  the 
day  of ,  in  the  year  18 ,  at ,  county  of ,  and 


State  of ,  under  and  by  virtue  of  a  commission  issued  out  of 


222  DEPOSITIONS. 

DELAWARE— CONTINUED. 

the Court,  in  and  for  the  county  of -,  State  of  Delaware, 

in  a  certain  cause  therein  depending  between  John  Doe,  plaintiff, 
and  Richard  Roe,  defendant. 

A  B,  a  witness,  being  duly  sworn  and  examined  on  the  part  of 
the  plaintiff,  doth  depose  and  say  as  follows  : 

To  the  first  interrogatory  he  saith :     \And  so  on.] 
When  the  deposition  is  finished,  it  should  be  subscribed   by  the 
witness,  and  the  commissioner  should  write  his  name  on  each  sepa- 
rate sheet  and  certify  the  deposition,  as  follows  : 

Certificate. 

Examination  of  A  B,  a  witness  on  the  part  of  the  plaintiff  [or 
defendant]  in  the  above  stated  cause,  who  is  personally  known  to 
me,  [or  proof  having  been  made  before  me  of  the  personal  identity 
of  said  witness]  and  who  was,  between  the  hours  of  8  o'clock  A. 
M.  and  4  o'clock  p.  M.,  on  the day  of  ,  18 ,  at  my  of- 
fice   ,  [giving  full  address]  called  before  me,  and  who,  after 

being  sworn  to  speak  the  truth,  the  whole  truth,  and  nothing  but 
the  truth,  did  depose  and  testify  to  the  above  deposition,  which  was 
taken  down  and  reduced  to  writing  by  me,  and  signed  by  said  wit- 
ness in  my  presence.  All  of  which  I  certify  under  my  hand  and 
official  seal,  this day  of  ,  18 .  — . 

If  there  be  any  instrument  or  document  produced  and  proved  by 
the  witness,  it  should  be  attached,  and  all  carefully  sealed  and  di- 
rected to  the  clerk  of  the  Court,  with  the  title  of  the  cause  indorsed 
thereon. 


FLORIDA. 

Where  a  witness  resides  out  of  the  State,  or  out  of  any  county 
in  which  his  testimony  jnay  be  required  in  any  cause,  or  who  is 
bound  on  a  voyage  to  sea*,  or  is  about  to  go  out  of  the  State  and 
remain  until  after  the  trial,  or  is  very  aged  or  infirm,  a  commis- 
sion may  be  had  to  take  his  deposition,  addressed  to  not  less  than 
two  commissioners.  The  commission  shall  be  annexed  to  the  in- 
terrogatories, and  be  tested  from  the  Court  issuing  the  same.  In 
issuing  the  commissions,  blanks  may  be  left  for  the  names  of  the 
commissioners,  but  the  names  of  the  witnesses  to  be  examined  must 
be  distinctly  specified  in  the  interrogatories  and  commission. 

The  return  may  be  made  by  mail,  or  by  a  party  to  the  cause,  or 
any  other  person  who  shall  make  oath  "  that  he  received  the  said 
packet  from  one  of  the  commissioners ;  that  it  had  been  in  his  pos- 
session ever  since,  and  has  not  been  opened  or  altered.  If  returned 
by  mail,  the  postmaster  at  the  office  to  which  the  packet  is  con- 
veyed must  indorse  "  received  by  due  course  of  mail." 

The  commissioners,  having  sealed  up  the  commission  and  deposi- 
tion, shall  write  their  names  across  the  seals  of  the  envelope,  -and 


DEPOSITIONS.  223 

FLORIDA— CONTINUED. 

give  the  packet  such  direction  as  will  enable  the  Court  to  know  that 
it  was  intended  for  the  Court,  and  applicable  to  some  particular 
cause  therein.  Bush's  Dior.  p.  314. 

O      *• 

116.  Form  of  caption  and  certificate. 

Deposition  of  witnesses  produced,  sworn,  and  examined  on  the 
day  of ,  A.  D.  18 ,  at  the  office  of ,  Commissioner, 


[giving  full  address]  by  virtue  of  the  the  annexed  commission,  is- 
sued out  of  the  clerk's  office  of  the Court  of  the Circuit 

of  Florida,  for  the  county  of ,  to  us  directed,  for  the  examina- 
tion of  said  witnesses  in  a  cause  therein  depending  between  John 
Doe,  plaintiff,  and  Richard  Roe,  defendant,  on  the  part  of  the 

plaintiff.     ,  of  the ,  [giving  residence  of  witness]  being 

duly  sworn,  deposeth  and  answereth  as  follows  : 

1.  To  the  first  interrogatory  the  witness  saith  :     [And  so  on.~\ 
The  witness  must  then  sign  the  deposition,  and  the  commission- 
ers attest  the  same,  by  the  following  jurat : 

Sworn  to  and  subscribed  before  us  the day  of ,  18 . 


Commissioners. 

If  there  are  cross-interrogatories,  they  should  proceed  with  them, 
and  insert  the  answers  immediately  following  the  answers  of  the 
direct  interrogatories  in  the  form  following : 

The  said  witness  answers  and  deposes  to  the  cross-interrogatories 
as  follows : 

1.  To  the  first  cross-interrogatory  he  answers  and  says  : 

And  the  answers  to  the  cross-interrogatories  should  be  signed  by 
the  witness,  and  attested  by  the  commissioners,  in  the  same  man- 
ner as  directed  for  the  direct  interrogatories. 


GEORGIA. 

Commissions  shall  issue  generally  in  blank,  allowing  the  party  to 
select  his  commissioners ;  but  in  any  case,  the  opposite  party  shall 
have  the  privilege  of  naming  two  competent  commissioners,  whose 
names  shall  be  inserted  in  the  commission,  and  one  of  whom  shall 
act  in  the  execution  thereof,  unless  a  good  and  sufficient  reason  be 
shown  for  his  failure.  No  person  is  competent  to  act  as  commis- 
sioner who  would  be  incompetent  as  a  juror  on  account  of  rela- 
tionship, or  as  a  witness  on  account  of  interest;  nor  will  the  attor- 
ney of  the  party,  or  his  clerk,  or  an  agent  paid  to  discharge  this 
duty,  be  a  competent  commissioner.  Reasonable  compensation 
may  be  paid  to  the  commissioners,  but  not  more  than  two  dollars 
per  day  shall  be  taxed  as  costs  against  a  party.  No  party,  or  his 


224  DEPOSITIONS. 

GEORGIA— CONTINUED. 

counsel,  or  his  agent,  or  other  person  on  his  behalf,  should  be  pres- 
ent at  the  execution  of  the  commission,  and  everything  attending 
the 'execution  should  show  a  perfect  impartiality  and  freedom  from 
bias.  Code  of  1873,  Sees.  3882-4. 

Witnesses  may  write  out  their  own  answers  in  the  presence  of 
the  commissioners,  and  by  their  consent,  but  in  no  other  way  shall 
they  prepare  the  same ;  and  if  the  witnesses  answer  from  written 
memoranda,  such  memoranda  shall  be  sent  with  the  commission, 
and  the  fact  certified  by  the  commissioners. 

After  execution,  the  interrogatories,  answers,  and  commissions 
should  be  inclosed  in  an  envelope  and  sealed,  with  the  names  of  the 
commissioners  written  across  the  seal,  and  directed  to  the  officer  of 
the  Court  whence  the  commission  issued.  The  package  can  be 
sent  by  mail,  or  intrusted  to  the  party,  or  some  private  hand.  In 
the  former  case,  the  postmaster  receiving  it  from  the  commissioner 
must  certify  to  its  reception  by  due  course  of  mail.  In  the  latter 
case,  the  person  receiving  and  delivering  it  in  Court  must  make 
affidavit  of  the  fact,  and  of  its  freedom  from  alteration.  The  Code, 
Sec.  3891,  provides  the  following  form  : 


117.  Form  of  caption. 

STATE  OF  GEOKGIA,  ") 
County  of ,          j  S! 

By  virtue  of  an  agreement  between  the  parties  or  counsel,  in  the 

case  of  v. ,  pending  in  the  Court  of County, 

[or  district,  as  the  case  may  be]  the  undersigned,  acting  as  com- 
missioners, have  caused  A  B,  a  witness  in  said  cause,  to  come  before 
us,  who,  being  duly  sworn  true  answers  to  make  to  the  annexed 
interrogatories,  deposes  and  answers  as  follows  : 

1.  To  the  first  interrogatory  he  answers :     [And  so  on.] 

To  the  first  cross-interrogatory  he  answers,  etc. 

Answered,  subscribed,*and  sworn  to  before  us,  this day  of 

,  18 .  E  F,  Commissioner.  [£ea£.] 

G  H,  Commissioner.  [  $ea?.J 

In  case  the  commission  is  under  appointment  of  Court,  it  may 

begin :  "  By  virtue  of  a  commission  from  the  honorable  the 

Court  of County,  to  us  directed,  we  have  caused  A  B,"  etc. 


IDAHO. 

In  this  Territory,  the  deposition  of  a  witness  may  be  taken  when 
the  witness  is  a  party  to  or  benefited  by  the  action,  when  he  resides 
out  of  the  county,  when  he  is  about  to  leave  the  county  to  be  ab- 
sent at  the  time  of  trial,  when  he  is,  too  infirm  to  attend,  and  when 
the  testimony  is  required  upon  a  motion,  or  in  any  other  case  where 
the  oral  examination  of  the  witness  is  not  required. 


DEPOSITIONS.  225 

IDAHO — CONTINUED. 

The  deposition,  when  completed,  shall  be  carefully  read  to  the 
witness,  and  corrected  by  him  in  any  particular  if  desired.  It  shall 
be  subscribed  by  the  witness,  certified  by  the  officer,  and  inclosed 
in  an  envelope  or  wrapper,  sealed,  and  directed  to  the  clerk  -of  the 
Court,  or  to  such  person  as  the  parties  in  writing  may  agree  upon. 

Out  of  the  Territory,  within  the  United  States,  a  deposition  of  a 
witness  may  be  taken  by  a  commission  directed  to  a  person  agreed 
upon  by  the  parties,  or,  if  they  do  not  agree  to  any  judge  or  justice 
of  the  peace,  a  commissioner  selected  by  the  officer  issuing  the 
commission.  If  issued  to  any  country  out  of  the  United  States,  it 
may  be  directed  to  a  minister,  einbassador,  consul,  vice-consul,  or 
consul-agent  of  the  United  States  in  such  country,  or  to  any  person 
agreed  upon  by  the  parties. 

The  commission  shall  authorize  the  commissioner  to  administer 
an  oath  to  the  witness,  and  to  take  his  deposition  in  answer  to  the 
interrogatories;  or  when  the  examination  is  to  be  made  without 
interrogatories,  in  respect  to  the  question  in  dispute,  [same  as  in 
California]  and  to  certify  the  deposition  to  the  Court  in  a  sealed 
envelope,  directed  to  the  clerk,  or  other  person  designated  or  agreed 
upon,  and  forwarded  to  him  by  mail  or  other  usual  channel  of  con- 
veyance. Rev.  Laws,  (1876)  pp.  227,  228. 

For  form  of  certificate,  use  that  given  for  California. 


ILLINOIS. 

Resident  witnesses  may  be  examined  and  their  deposition  taken 
when  they  reside  out  of  the  county,  when  about  to  depart  from  the 
State,  when  they  are  in  custody  on  legal  process,  or  are  too  infirm 
to  attend  Court.  Their  deposition  may  be  taken  before  a  justice 
of  the  peace,  clerk  of  a  Court,  or  notary  public.  The  testimony  of 
a  witness  residing  in  the  State,  more  than  a  hundred  miles  from  the 
place  of  trial,  or  residing  out  of  the  State,  may  be  taken  by  depo- 
sition on  a  commission  directed  to  any  competent  or  disinterested 
person,  as  commissioner,  or  to  any  judge,  master  in  chancery,  no- 
tary public,  or  justice  of  the  peace  of  the  county  or  city  in  which 
such  witness  may  reside,  or  in  case  to  take  the  testimony  of  a  per- 
son engaged  in  the  United  States  army  or  navy,  "  to  any  commis- 
sioned officer  in  the  military  or  naval  service  of  this  State  or  the 
United  States." 

Previous  to  examination,  the  witness  shall  be  sworn  to  testify  the 
truth  in  relation  to  the  matter  in  controversy,  so  far  as  he  or  she 
may  be  interrogated.  The  witness,  after  giving  the  deposition, 
shall  sign  it,  the  officer  shall  annex  to  the  foot  thereof  a  certificate 
subscribed  by  himself,  stating  that  it  was  sworn  to  and  signed  by 
the  deponent,  at  the  time  and  place  when  and  where  the  same  was 
taken.  All  the  papers  shall  be  inclosed  in  an  envelope,  sealed  up, 
and  directed  to  the  clerk  of  the  Court  in  which  the  action  shall  be 

NOTARIES — 15. 


226  DEPOSITIONS. 

ILLINOIS— CONTINUED. 

pending,  with  the  names  of  the  parties  litigant  indorsed  thereon. 

When  any  deposition  shall  be  taken  by  any  judge,  master  in 
chancery,  notary  public,  or  justice  of  the  peace  out  of  this  State, 
or  other  officer,  the  return  shall  be  accompanied  by  a  certificate  of 
his  official  character,  under  the  great  seal  of  the  State,  or  under  the 
seal  of  the  proper  Court  of  Record  of  the  county  or  city  wherein 
such  deposition  shall  be  taken. 

The  party,  his  attorney,  or  any  person  who  shall  in  anywise  be 
interested  in  the  eveut'of  the  suit,  shall  not  be  permitted  to  dictate, 
write,  or  draw  up  any  deposition  which  may  at  any  time  be  taken, 
or  be  present  during  the  taking  of  any  deposition  by  written  inter- 
rogatories ;  and  every  deposition  so  dictated,  written,  or  drawn  up, 
or  during  the  taking  of  which  any  such  party,  his  attorney,  or  any 
person  so  interested  is  present  when  the  same  is  taken  upon  written 
interrogatories  as  aforesaid,  shall  be  rejected  by  the  Court  as  in- 
formal and  insufficient.  Rev.  Stat.  of  1874,  pp.  492-494. 


118.  Form  of  caption  and  certificate. 

The  deposition  of ,  of  the  county  of  and  State  of  -, 

a  witness  of  lawful  age,  produced,  sworn,  and  examined  on  his  cor- 
poral oath,  on  the day  of  ,  A.  D.  18 ,  at  the  office  [or 

house]  of ,  in  the  town  [or  city]  of ,  in  the  county  of 

and  State  of  aforesaid,  by  me,  a  commissioner  [or  "  by  us  "  if 

more  than  one  commissioner,  inserting  the  names  of  all  the  commis- 
sioners] duly  appointed  by  a  dedimus  potestatem,  or  commission 
issued  out  of  the  clerk's  office  of  the  Superior  Court  of  Cook 
County,  [or  other  Court,  as  the  case  may  be]  in  the  State  of  Illi- 
nois, bearing  test  in  the  name  of  ,  Esq.,  clerk  of  said  Court, 

with  the  seal  of  said  Court  affixed  thereto,  and  to  me  [or  us]  di- 
rected as  such  commissioner  for  the  examination  of  the  said , 

a  witness  in  a  certain  suit  and  matter  in  controversy  now  pending 
and  undetermined  in  tne  said  Superior  Court  of  Cook  County, 

wherein is  plaintiff  and defendant,  in  behalf  of  the  said, 

as  well  upon  the  cross-interrogatories  of  the ,  as  on  the  inter- 
rogatories of  the ,  which  were  attached  to  and  inclosed  with 

the  said  commission,  and  upon  none  others.     The  said  ,  being 

first  duly  sworn  by  rue  [or  by ,  one  of  the  said  commissioners] 

as  a  witness  in  the  said  cause,  previous  to  the  commencement  of  his 
examination,  to  testify  the  truth,  as  well  on  the  part  of  the  plaint- 
iff as  the  defendant,  in  relation  to  the  matters  in  controversy  be- 
tween the  said,  plaintiff  and  defendant,  so  far  as  he  should  be  inter- 
rogated, testified  and  deposed  as  follows  : 
"  Interrogatory  first."     [Here  insert  it.~\ 
"  Answer  to  first  interrogatory."     [Here  insert  it.~\ 
After  the  deposition  is  taken,  the   interrogatories  and  answei-s 
should  be  read  over  to  the  witness,  and  if  he  assents  to  the  truth  of 
the  answers,  he  will  then  sign  his  name,  and  swear  to  the  truth  of  the 


DEPOSITIONS.  227 

ILLINOIS— CONTINUED. 

deposition.  This  oath  is  in  addition  to  the  preliminary  oath  which 
is  administered  previous  to  the  commencement  of  his  examination. 

Certificate. 

I, ,  of  the  county  of and  State  of ,  a  commissioner 

duly  appointed  to  take  the  deposition  of  said ,  a  witness  whose 

name  is  subscribed  to  the  foregoing  deposition,  do  hereby  certify 
that  previous  to  the  commencement  of  the  examination  of  the  said 

as  a  witness  in  the  suit  between  the  said ,  plaintiff,  and 

the  said ,  defendant,  he  was  duly  sworn  by  me  as  such  commis- 
sioner, to  testify  the  truth  in  relation  to  the  matters  in  controversy 

between  the  said ,  plaintiff,  and  the  said ,  defendant,  so  far 

as  he  should  be  interrogated  concerning  the  same ;  that  the  said 

deposition  was  taken  at  my  office  [or  at  the  house  of ]  in  the 

city  of ,  in  the  county  of and  State  of  ,  on  the 

day  of ,  A.  D.  18 ,  and  that  after  said  deposition  was  taken 

by  me  [or  us]  as  aforesaid,  the  interrogatories  and  answers  thereto, 
as  written  down,  were  read  over  to  the  said  witness,  and  that 
thereupon  the  same  was  signed  and  sworn  to  by  the  said  deponent 

,  before  me,  [or  us]  the  oath  being  administered  by  ,  one 

of  said  commissioners,  [where  ther"e  are  more  than  one]  as  such 
commissioner  at  the  place  and  on  the  day  and  year  last  aforesaid. 

,  Commissioner. 


INDIANA. 

Depositions  of  witnesses,  taken  within  or  without  the  State,  may 
be  taken  before  any  judge,  justice  of  the  peace,  notary  public, 
mayor  or  recorder  of  a  city,  clerk  of  a  Court  of  Record,  or  com- 
missioner appointed  by  the  Court ;  but  shall  not  be  taken  before 
any  person  being  of  kin  to  either  party,  or  interested  in  the  action. 
The  officer  taking  the  deposition  shall  have  power  to  summon  and 
compel  the  attendance  of  witnesses ;  and  this  power  can  be  exer- 
cised by  officers  appointed  to  take  depositions  in  the  State  under 
commission  from  another  State.  2  G.  &  H.  Stat.  p.  176. 

The  deponent  shall  be  first  sworn  by  the  officer  to  testify  the 
truth,  the  whole  truth,  and  nothing  but  the  truth  relating  to  the 
cause.  The  deposition  shall  be  written  down  by  the  officer,  or  by 
the  deponent,  or  by  some  disinterested  person,  in  the  presence  and 
under  the  direction  of  the  officer,  and  after  the  same  has  been 
carefully  read  by  the  deponent,  it  shall  be  subscribed  by  him.  The 
officer  shall  annex  a  certificate,  stating  the  following  facts :  1 .  That 
the  deponent  was  sworn  according  to  law.  2.  By  whom  the  depo- 
sition was  written,  and  if  written  by  the  deponent,  or  some  disin- 
terested person,  that  it  was  written  in  the  pi-esence  and  under  the 
direction  of  the  officer.  3.  "Whether  or  not  the  adverse  party  at- 
tended. 4.  The  time  and  place  of  taking  the  deposition,  and  the 


228  DEPOSITIONS. 

INDIANA — CONTINUED. 

hours  between  which  the  same  was  taken,  and  the  officer  shall  sign 
and  attest  the  certificate,  and  seal  the  same,  if  he  have  a  seal  of 
office.  He  shall  seal  up  in  an  envelope,  and  direct  the  deposition 
to  the  clerk  of  the  Court,  indorsing  on  the  envelope  the  names  of 
the  parties  and  witnesses  whose  depositions  are  inclosed.  2  Gav- 
in &  Hord,  pp.  176,  177. 

It  has  been  held  in  this  State  that  the  omission  to  state  whether 
or  not  the  adverse  party  attended  is  fatal  to  the  deposition.  Mad- 
ison etc.  R.  R.  Co.  v.  Whitesel,  11  Ind.  55. 


119.  Form  of  caption  and  certificate. 

Deposition  of ,  witness,  produced  and  sworn  before  me,  a 

of  ,  at ,  in county,  State  of ,  on  the 


day  of ,  18 ,  pursuant  to  the  inclosed  notice  [and  commis- 
sion, if  there  be  one].  This  [or  these]  depositions taken  on 

the  part  of  the ,  in  a  certain  action  now  pending  in  the  — 

Court  of  County,  in  the  State  of  Indiana,  wherein  John  Doe 

is  plaintiff  and  Richard  Roe  is  defendant.    The  said ,  [naming 

first  witness]  being  duly  sworn  to  testify  the  truth  relating  to  said 
cause,  deposes  as  follows : 

Examined  by . 

Question  1. 

Answer.    [And  so  on,  the  cross-examination  in  the  same  manner.] 

Certificate. 

STATE  OF  INDIANA,") 
County  of ,          ) 

I, ,  a ,  within  and  for  said  county,  hereby  certify  that 

the  above  [here  give  name  of  witness  or  witnesses]  was  by  me  first 
duly  sworn  according  to  law,  to  testify  the  truth,  the  whole  truth,  and 
nothing  but  the  truth  relating  to  said  cause ;  that  his  deposition  was 
reduced  to  writing  by  me  [or  by  said  deponent,  or  by  A  B,  a  dis- 
interested person,  in  my  presence  and  under  my  direction] ;  that 
said  [adverse  party]  attended  in  person,  [or  by  C  D,  his  or  their 
attorney,  or  was  not  present,  as  the  case  may  be]  and  said  deposi- 
tion was  taken  at ,  in ,  county  of ,  State  of ,  on 

the day  of ,  18 ,  between  the  hours  of A.  M.  and 

p.  M.,  of  said  day. 

In  testimony  whereof,  I  have  hereunto  set  my  hand  and  — 
seal,  this day  of ,  18 . 

If  the  officer  have  no  seal,  and  his  name  is  not  mentioned  in  the 
commission,  he  must  procure  the  authentication  of  his  certificate 
by  the  certificate  and  seal  of  the  clerk  or  prothonotary  of  any 
Court  of  Record  of  the  county  in  which  the  officer  exercises  the 
duties  of  his  office. 


DEPOSITIONS.  229 


IOWA. 

If  a  witness  resides  out  of  the  county  wherein  the  cause  is  pend- 
ing, whether  within  or  without  the  State,  his  deposition  may  be 
taken  before  one  or  more  commissioners  on  written  interrogatories. 
The  commissioners  selected  may  be  the  clerk,  or  any  judge  of  a 
Court  of  Record,  or  a  commissioner  of  the  State,  a  notary  public, 
or  any  consul  or  consular  agent  of  the  United  States.  The  com- 
mission must  have  inserted  in  it  the  name  of  office  of  such  officer, 
or  his  individual  name  and  official  style,  and  the  name  of  the 
Court  of  which  the  commissioner  is  clerk  or  judge,  and  the  name 
of  the  State  and  county;  or  if  without  the  United  States  and 
Canada,  the  name  of  the  State  and  town  or  city  in  which  such 
commissioner,  notary,  or  consul,  or  consular  agent  resides.  None 
of  these  officers  are  authorized  to  take  the  deposition  except  with- 
in the  limits  of  their  official  jurisdiction.  The  officer  must  cause 
the  interrogatories  propounded,  whether  written  or  oral,  to  be  writ- 
ten out,  and  the  answers  thereto  to  be  inserted  immediately  under- 
neath the  respective  questions.  The  answers  must  be  in  the 
language,  as  near  as  practicable,  of  the  witness,  if  either  party  re- 
quires it.  The  person  taking  the  deposition  shall  certify  that  it 
was  subscribed  and  sworn  to  by  the  deponent  at  the  time  and  place 
therein  mentioned.  The  whole,  including  the  commission  and  in- 
terrogatories, when  any  such  were  issued,  must  be  sealed  up  and 
returned  to  the  clerk  of  the  proper  county  by  mail,  unless  a  differ- 
ent mode  be  agreed  upon  between  the  parties. 

Where  a  deposition  is  taken  upon  interrogatories,  neither  party, 
nor  his  agent,  nor  his  attorney,  shall  be  present  at  the  examination 
of  a  witness,  unless  both  parties  are  present  or  represented  by  an 
agent  or  attorney,  and  the  certificate  shall  state  such  fact  if  the 
party  or  his  agent  is  present.  When  returned  by  mail,  the  officer 
shall  state,  on  the  outside  of  the  envelope,  the  title  of  the  cause  in 
which  the  deposition  is  to  be  used. 

Where  depositions  are  directed  to  be  taken  before  a  judge  or 
justice  of  the  peace,  merely  by  his  name  of  office,  the  return  must 
contain  an  authentication  by  the  clerk  of  the  proper  Court,  under  his 
seal  of  office,  verifying  the  fact,  that  the  person  is  really  such  officer. 
The  deposition  must  show  that  the  witness  is  a  non-resident  of  the 
county,  or  such  other  fact  as  renders  the  taking  of  the  deposition 
.legal.  Code  of  1873,  pp.  574-6. 


120.  Form  of  caption  and  certificate. 

Depositions  of  witnesses  produced,  sworn,  and  examined  at , 

before  me,  [giving  name  and  style  of  officer]  in  a  certain  case  now 

pending  in  the Court  of County,  State  of  Iowa,  between 

John  Doe,  plaintiff,  and  Richard  Roe,  defendant.  On'the  part  of 
the  plaintiff,  [or  the  defendant]  A  B,  of  lawful  age,  being  pro- 
duced, sworn,  and  examined,  deposeth  and  saith :  \_Here  insert  each 


230  DEPOSITIONS. 

IOWA — CONTINUED. 

interrogatory  as  it  occurs,  and  the  answers  thereto  immediately 

following.] 

A  separate  caption  is  written  down  for  each  witness,  as  follows : 
Deposition  of  C  D. — The  said  C  D,  being  first  duly  sworn  and 

examined  on  the  part  of  the  plaintiff,  [or  defendant]  doth  depose 

and  say,  in  answer  to  the  several  interrogatories,  as  follows,  to  wit : 
Interrogatory  first :  [insert  the  interrogatory  ;  then  the  answer.] 
At  the  foot  of  each  deposition  the  officer  will  certify  as  follows : 

I, ,  do  hereby  certify  that  A  B,  the  deponent,  whose  place 

of  residence  is  [here  insert  it~\  was  by  me  sworn  to  testify  the  whole 
truth  of  his  [or  her]  knowledge  touching  the  matter  in  controversy 
in  the  case  aforesaid ;  that  deponent  was  examined,  and  his  exami- 
nation reduced  to  writing  by  [give  name  of  person"]  who  is  neither 
of  the  parties,  nor  attorney  of  either,  nor  in  anywise  interested  in 
the  suit ;  and  after  being  carefully  by  me  read  over  to  the  said  de- 
ponent the  same  was  sworn  to  and  subscribed  by  the  said  de- 
ponent in  my  presence,  on  the  day  of ,  A.  D.  18 ,  be- 
tween the  hours  of A.  M.  and p.  M.  .  of  the  said  day,  at 

.     Given  and  certified  under  my  hand  and  official  seal,  the  — 

day  of ,  A.  D.  18 .  ,  Commissioner. 

When  all  the  witnesses  are  sworn  and  examined,  the  officer  will 
attach  to  the  deposition  all  papers  and  exhibits,  the  commission 
and  notice,  with  the  following  certificate  indorsed  thereon,  or 
attached  thereto : 

STATE  OP  IOWA,  ") 

County  of  ,  j  Si 

I, ,  a ,  within  and  for  the  county  of ,  do  certify  that 

in  pursuance  of  the  within  [or  annexed]  commission  and  notice, 

came  before  me  at  my  office,  [stating  full  address] and , 

who  were  there  by  me  sworn  and  examined,  and  such  examination 
reduced  to  writing  by  [insert  name  of  person]  who  is  neither  of 
the  pai'ties,  their  attorney  nor  in  anywise  interested  in  the  event  of 
the  suit  \  and  after  being  by  me  read  over  to  each  of  the  deponents, 
the  same  was  is  worn  to  and  subscribed  to  by  said  witnesses  respect- 
ively in  my  presence,  and  their  depositions  are  now  herewith  re- 
turned. [  Then  state  if  either  or  both  parties  were  present  at  the 
examination  personally,  or  by  agent  or  attorney]  Given  under  my 

hand  and  official  seal,  hereto  Affixed,  at ,  this day  of , 

A.  D.  18 .  ,  Commissioner. 


KANSAS. 

The  deposition  -of  a  witness  may  be  taken  in  the  State  before  a 
judge  or  clerk  of  a  Court  of  Record,  before  a  county  clerk,  justice 
of  the  peace,  notary  public,  mayor,  or  chief  magistrate  of  any  city, 
or  town  corporate,  or  before  a  master  commissioner,  or  person  em- 


DEPOSITIONS.  231 

KANSAS— COXTIHTJED. 

powered  by  a  special  commission.  Out  of  the  State,  a  deposition 
may  be  taken  by  a  judge,  justice,  or  chancellor  of  any  Court  of 
Record,  a  justice  of  the  peace,  notary  public,  mayor  or  chief  mag- 
istrate of  any  city  or  town  corporate,  a  commissioner  appointed  by 
the  governor  to  take  depositions,  or  any  person  authorized  by  a 
special  commission  from  the  State.  The  deposition  shall  be  writ- 
ten in  the  presence  of  the  officer,  either  by  the  officer,  the  witness, 
or  some  disinterested  person,  and  subscribed  by  the  witness. 
When  finished,  it  shall  be  sealed  up  and  indorsed  with  the  title  of 
the  cause  and  the  name  of  the  officer  taking  the  same,  and  trans- 
mitted to  the  clerk  of  the  Court. 

The  officer  shall  annex  thereto  a  certificate,  showing  that  the  wit- 
ness was  first  sworn  to  testify  the  truth,  the  whole  truth,  and  noth- 
ing but  the  truth ;  that  the  deposition  was  reduced  by  some  proper 
person,  naming  him;  that  it  was  written  and  subscribed  in  the 
presence  of  the  officer;  and  that  it  was  taken  at  the  time  and 
place  specified  in  the  notice.  Depositions  taken  by  officers  here 
mentioned,  having  a  seal  of  office,  whether  resident  within  or  with- 
out the  State,  shall  be  admitted  in  evidence,  upon  the  certificate 
and  signature  of  such  officer,  or  his  official  seal,  and  no  other  or 
further  authentication  is  required.  If  the  officer  have  no  seal,  the 
deposition,  if  taken  out  of  the  State,  shall  be  certified  and  signed 
by  such  officer,  and  shall  be  further  authenticated,  either  by  parol 
proof,  adduced  in  Court,  or  by  the  official  certificate  and  seal  of 
any  secretary  or  other  officer  of  the  Territory  keeping  the  great 
seal  thereof,  or  of  the  clerk  or  prothonotary  of  any  Court  having 
a  seal,  attesting  that  such  judicial  or  other  officer  was,  at  the  time 
of  taking  the  same,  duly  qualified,  and  acting  as  such  officer.  But, 
if  the  deposition  be  taken  within  the  State  by  an  officer  having  no 
seal,  or  within  or  without  the  State  under  a  special  commission,  it 
shall  be  sufficiently  authenticated  by  the  official  signature  of  the 
officer  or  commissioner.  Gen.  Stat.  p.  696. 

If  there  are  adjournments,  they  should  be  noted  by  the  officer 
from  day  to  day,  and  legal  reasons  given  therefor. 


19.1.  Form  of  caption  and  certificate. 

Depositions  of  sundry  witnesses  taken  before  me ,  within 

and  for  the county  of  ,  in  the  State  of ,  on  the 

day  of ,  in  the  year  18 ,  between  the  hours  of  A.  M. 

and P.  M.,  at in  said  county,  pursuant  to  the  annexed 

notice,  [or  agreement,  as  the  case  may  be]  to  be  read  in  evidence 
on  behalf  of  the  plaintiff,  [or  defendant]  in  the  said  action.  A 
B,  of  lawful  age,  being  by  me  first  duly  examined,  cautioned,  and 
sworn  to  testify  the  truth,  the  whole  truth,  and  nothing  but  the 
truth,  deposeth  and  saith : 


232  DEPOSITIONS. 

KANSAS— CONTINUED. 
Certificate. 

I, ,  a in  the  county  of  ,  do  hereby  certify  that  A 

B  and  C  D,  who  have  testified,  were  by  me  first  severally  sworn  to 
testify  the  truth,  the  whole  truth,  and  nothing  but  the  truth,  and 
that  the  depositions  by  them  respectively  subscribed,  as  above  set 
forth,  were  reduced  to  writing  by  myself,  [or  by  another  person 
who  is  not  interested,  naming  him,  and  stating  it  done  in  the  offi- 
cer's presence]  in  presence  of  the  witnesses  respectively,  and  were 
respectively  subscribed  by  the  said  witness  [or  witnesses]  in  my 
presence,  and  were  taken  at  the  tune  and  place  in  the  annexed 
notice  [or  agreement]  specified;  that  I  am  not  counsel,  attorney,  or 
relative  of  either  party,  or  otherwise  interested  in  the  event  of  this 
suit;  [if  there  had  been  adjournments,  addf\  and  commenced  at 
the  time  in  the  notice  specified,  and  continued  by  adjournments 
from  day  to  day  as  above  stated. ,  Commissioner. 


KENTUCKY. 

Depositions  may  be  taken  out  of  the  State  before  a  commissioner, 
appointed  by  the  governor  thereof,  a  judge  of  a  Court,  a  justice 
of  the  peace,  mayor  of  a  city,  notary  public,  or  any  person  empow- 
ered by  a  commission  directed  to  him  by  consent  of  the  parties,  or 
by  order  of  the  Court.  Civil  Prac.  Code,  Sec.  G28. 

In  the  State,  depositions  are  taken  before  examiners  appointed 
for  that  purpose.  But  where  an  examiner  cannot  be  obtained  in 
the  county,  or  where  the  witness  is  unable,  from  age,  infirmity,  or 
imprisonment,  to  attend  at  the  examiner's  office,  and  the  examiner 
refuses  to  go  to  him,  or  where  all  the  examiners  of  the  county  are 
interested  in  the  county^the  depositions  may  be  taken  before  a 
judge  of  a  Court,  a  justice'of  the  peace,  a  notary  public,  or  a  clerk 
of  a  Court.  Where  parties  consent  in  writing,  justices  of  the  peace 
may  take  depositions.  Sees.  624,  G25. 

Where  a  deposition  is  taken  by  intei'rogatories,  neither  party,  nor 
his  agent  nor  attorney,  shall  be  present  at  the  examination  of  the  wit- 
nesses, unless  both  parties  are  pi'esent  or  represented,  or  unless  the 
party  has  been  notified  to  attend,  the  other  being  present.  The 
certificate  shall  state  the  time  and  place  of  taking  the  deposition, 
that  the  witness  was  duly  swom  before  he  gave  his  testimony,  and 
that  his  testimony  was  written,  read  to,  and  subscribed  by  him  in 
the  presence  of  the  officer ;  and  also  state  by  whom  it  was  written, 
and  which  of  the  parties,  in  person,  or  by  agent  or  attorney,  was 
present  at  the  examination  of  the  witness. 

The  deposition  may  be  mailed,  or  delivered  to  the  party,  or 
some  one  for  him,  who  will  make  oath  that  he  did  not  open  the 
deposition,  or  any  person  for  him.  Sec.  646. 


DEPOSITIONS.  233 

KENTUCK  r— CONTORTED. 
122.  Form  of  caption  and  certificate. 

The  deposition  of  ,  taken  on  the day  of ,  18 ,  at 

,  county  of ,  State  of ,  to  be  read  as  evidence  in  an 

action  between  John  Doe,  plaintiff,  and  Richard  Roe,  defendant, 
now  pending  in  the Court  for County,  State  of  Kentucky. 

Certificate. 

I,  a for  the  county  of ,  do  certify  that  the  foregoing 

deposition  of  was  taken  before  me  and  was  read  to  and  sub- 
scribed by  him  in  my  presence,  at  the  time  and  place  and  in  the 

action  mentioned  in  the  caption,  the  said having  been  first 

sworn  by  me  that  the  evidence  he  should  give  in  the  action  should 
be  the  truth,  the  whole  truth,  and  nothing  but  the  truth,  and  his 
statements  reduced  to  writing  by  me  in  his  presence,  [or  by  him  in 
my  presence]  the  plaintiff  alone  being  present  at  the  examination 
[or  the  defendant,  or  neither  party,  in  person  or  by  attorney,  being 
present  at  the  examination,  according  to  the  facts].  Given  under 

my  hand  and  seal  this day  of ,  18 . 

,  Commissioner. 


LOUISIANA. 

The  commission  may  be  executed  by  any  one  of  the  commis- 
sioners. If  they  are  all  absent,  or  otherwise  incapable  of  executing 
it,  it  may  be  executed  by  any  judge  or  justice  or  the  peace.  If 
executed  by  any  other  than  one  of  the  commissioners,  expressly 
named,  it  will  be  necessary  to  obtain  the  certificate  of  the  governor 
of  the  State  that  the  judge  or  justice  of  the  peace  officiating  was 
such  on  the  day  or  days  when  the  commission  was  executed,  and 
that  his  signature  to  the  commission  was  genuine.  The  commis- 
sioner ought,  previous  to  writing  the  answer  of  the  witness,  to 
swear  him  to  declare  the  truth  on  the  questions  put  to  him  in  the 
cause.  The  commissioner  should  draw  his  proces  verbal,  or  certifi- 
cate of  the  taking  of  the  depositions,  and  annex  the  same  to  the 
commission  and  interrogatories. 


123.  Form  of  caption  and  certificate. 

STATE  OF  LOUISIANA,  ) 

County  of ,  \ 

Be  it  remembered,  that  I, ,  do  hereby,  that  acting  by  virtue 

of  and  in  obedience  to  the  inclosed  and  annexed  commission  is- 
sued out  of  the  Honorable  District  Court  for  the Judicial  Dis- 
trict of  Louisiana,  in  a  case  entitled  John  Doe  v.  Richard  Roe,  I  have 
cited  A  B,  of  said  county,  a  witness  on  behalf  of  the  plaintiff  [or 


234  DEPOSITIONS. 

LOUISIANA— CONTINUED. 

defendant]  in  the  above  entitled  cause,  to  appear  before  me  in-  the 

said  [city  or  county]  on  this day  of ,  18 ,  and  being 

then  and  there  duly  sworn,  upon  the  Bible,  to  declare  the  truth  on 
the  questions  and  cross-questions  put  to  him  in  the  cause,  answered 
as  follows  to  the  questions  and  cross-interrogatories  annexed  to 
said  commission,  to  wit : 

To  interrogatory  first,  witness  answered :  [And  so  onJ]  Each  dep- 
osition should  be  subscribed  by  the  person  making  it,  and  there 
should  be  annexed  at  the  foot  of  it  the  following  jurat :  Sworn  to 

and  subscribed  on  the day  of  ,  18 ,  at  the  place  first 

aforesaid.  ,  Commissioner. 

Certificate. 

STATE  OF  LOUISIANA,  > 
County  of ,  j 

I, ,  do  hereby  certify  that  the  foregoing  depositions  were 

reduced  to  writing  as  aforesaid  by  me,  and  that  the  same  were 
signed  as  above  by  the  witnesses  in  my  presence. 

In  witness  whereof,  I  have  hereunto  set  my  hand  and  affixed  my 

official  seal,  the day  of ,  18 . 

,  Commissioner. 

The  commission,  interrogatories,  cross-interrogatories,  answers, 
and  documents  therein  referred  to,  and  the  certificate  of  the  com- 
missioner, should  all  be  wafered  or  sealed  together,  the  whole  in- 
closed in  an  envelope  and  sealed,  the  commissioner's  name  written 
over  the  seal,  the  expense  of  taking  the  same  marked  inside,  the 
title  of  the  suit  marked  outside  the  envelope,  and  the  whole  ad- 
dressed to  "  The  Clerk  of Judicial  District,  Louisiana." 


%   MAINE. 

In  any  cause  depending  in  the  State,  depositions  may  be  taken 
out  of  the  State  as  follows : 

By  commission  issuing  out  of  the  Court  wherein  the  action  is 
pending,  and  addressed  to  any  judge  of  a  Court  of  Record,  notary 
public,  or  person  named  therein.  Attorneys,  or  parties  interested 
in  the  suit,  should  not  be  present  at  the  taking  of  the  depositions. 
The  witness  must  be  sworn  prior  to  his  examination,  and  subse- 
quent interrogatories  should  not  be  put  until  the  former  ones  have 
been  answered. 


124.  Form  of  caption  and  certificate. 

The  deposition  of ,  to  be  used  in  evidence  in  a  certain  cause 

now  pending  in  the Court  of  the  State  of  Maine,  within  and 

for  the  county  of ,  in  the  State  of  Maine,  wherein  John  Doe 


DEPOSITIONS.  235 

MAINE — CONTINUED. 

is  plaintiff,  and  Richard  Roe  is  defendant.  — — ,  of  the  [giving 

address  of  witness]  being  first  duly  sworn,  deposes  and  says  as 
follows : 

Certificate. 

STATE  OF  MAINE,  7 
County  of  ,      j  SS< 

On  this day  of  A.  D.  18 ,  the  within  named  depo- 
nent personally  appeared  before  me  at  [giving  official  residence]  in 
said  county,  was  first  sworn  by  me,  according  to  law,  to  testify  the 
truth,  the  whole  truth,  and  nothing  but  the  truth,  relating  to  the 
cause  or  matter  for  which  his  within  deposition  was  taken,  and  then, 
being  examined  on  interrogatories,  according  to  law,  gave,  on  oath, 

the  within  deposition,  which  was  written  by ,  a  disinterested 

person,  in  the  presence  and  under  the  direction  of  myself ;  and  after 
the  said  deposition  had  been  carefully  read  by  me  to  said  deponent, 
it  was  then  subscribed  by  him  in  my  presence.  Said  deposition 
was  taken  at  the  request  of  the  plaintiff  [or  defendant] ;  the  ad- 
verse party  was  notified  to  attend,  and  did  [or  did  not]  attend  its 
taking.  The  cause  in  which  it  is  to  be  used  is  an  action  of  tres- 
pass in  which  John  Doe  is  plaintiff  and  Richard  Roe  defendant, 

which  is  now  pending  in  the Court,  within  and  for  the  county 

of ,  in  said  State,  and  is  to  be  tried  in  said  Court  at  its  term  to 

be  holden  at ,  within  and  for  said  county  of  ,  on  the 

day  of ,  A.  D.  18 . 

The  cause  of  taking  said  deposition  is  that  the  deponent  does 
not  reside  in  the  State  of  Maine,  but  is  a  resident  of  the . 

Witness  my  hand  and  seal  at  said ,  the  day  and  year  first 

named.  ,  Commissioner. 


MARYLAND. 

When  witnesses  reside  out  of  the  State  a  commission  will  issue, 
provided  it  be  shown,  by  affidavit  or  otherwise,  that  such  commission 
is  proper  and  necessary.  The  commissioners  are  named  by  the 
Court,  and  must  be  sworn  before  some  judge  or  justice  "  truly, 
faithfully,  and  without  partiality  to  execute  the  duties  of  commission- 
er according  to  the  best  of  their  judgment."  The  official  character 
of  the  person  administering  the  oath  should  be  certified  by  a  clerk 
of  a  Court  of  Record.  Two  commissioners  are  named  in  the  com- 
mission ;  one  or  both  may  act.  It  is  competent  for  the  parties, 
their  agents  and  attorneys,  to  be  present  at  the  execution  of  any 
commission.  One  of  the  commissioners  will  administer  to  the  wit- 
ness whom  they  are  about  to  examine  on  oath  or  affirmation,  in  the 
established  form  of  the  place,  "  to  make  true  answers  to  all  such 
questions  as  shall  be  asked  upon  the  interrogatories  annexed  to  the 
commission,  without  favor  or  affection  to  either  party,  and  therein 
to  speak  the  truth,  the  whole  truth,  and  nothing  but  the  truth." 


236  DEPOSITIONS. 

MARYLAND— CONTINUED. 

The  witness  must  subscribe  his  examination  with  his  name,  and  the 
commissioners  must  subscribe  their  names  opposite  to  his  signature, 
for  the  purpose  of  identifying  it,  and  if  in  the  course  of  the  exam- 
ination the  witness  shall  produce  or  refer  to  any  paper,  exhibit,  or 
document,  the  same  must  be  marked  by  some  letter  or  figure,  and 
further  identified  by  the  commissioners  in  the  following  manner  : 

"  This  is  the  paper,  exhibit,  or  document  referred  to  by  ,  in 

his  examination,  as  the  paper  marked  '  A,' "  etc.,  to  which  they  will 
sign  their  names.  The  commissioners  must  bind  up  the  depositions 
and  exhibits  together  with  the  commission,  tape  passing  through 
and  connecting  the  whole,  and  then  make  the  following  indorse- 
ment on  the  commission :  "  The  execution  of  this  commission  ap- 
pears in  a  certain  schedule  hereunto  annexed,"  to  which  they 
also  cubscribe  their  names  and  affix  their  seals.  Thus  prepared  and 
executed,  they  will  inclose  the  same  in  an  envelope,  sealed  with 
their  seals,  their  names  written  across  or  by  the  side  of  the  seal, 
and  the  whole  addressed  to  the  clerk  of  the  Court. 


125.  Form  of  caption-and certificate. 

At  the  execution  of  the  annexed  commission,  issued  out  of  the 

Court  for  county,  and  to  us  directed,  and  empowering 

us  to  examine  evidences  in  the  cause  depending  in  said  Court,  be- 
tween John  Doe,  plaintiff,  and  Richard  Roe,  defendant,  we, 

and ,  commissioners  therein  named,  having  met  on  the  - 

day  of  ,  A.  D.  18 ,  at  o'clock,  at  [place  of  meeting] 

and  taken  before ,  a  commissioner  for  Maryland  in ,   [or 

other  officer]  the  oath  annexed  to  the  said  commission,  did  proceed 
then  and  there  to  take  the  following  depositions,  to  wit : 

,  a  witness  of  lawful  age,  produced  on  the  part  of  the  plaintiff, 

[or  defendant]  being  duly  sworn  and  examined  on  the  interroga- 
tories herewith  returned,  deposes  and  says : 

To  the  first  interrogatory : 

Answer : 

Certificate. 

There  being  no  other  witnesses  to  be  examined,  the  commission- 
ers closed  the  said  commission,  and  herewith  return  the  same,  un- 
der their  hands  and  seals,  this  •  day  of  ,  A.  D.  18 . 

,  Commissioner. 

,  Commissioner. 


MASSACHUSETTS. 

In  the  State  a  deposition  may  be  taken  when  the  witness  lives 
more  than  thirty  miles  from  the  place  of  trial,  or  is  about  to  go 
out  of  the  State,  not  to  be  present  at  the  trial,  or  when  the  witness 


DEPOSITIONS.  237 

MASSACHUSETTS— CONTIXUED. 

is  sick,  infirm,  or  aged.  The  deposition  may  be  taken  on  notice 
before  a  justice  of  the  peace,  who  puts  such  interrogatories  as  he 
shall  think  fit.  The  witness  may  write  his  deposition,  or  some  dis- 
interested person,  by  direction  and  in  the  presence  of  the  justice. 
He  shall  be  sworn  or  affirmed  to  testify  the  truth,  the  whole  truth, 
and  nothing  but  the  truth  relating  to  the  cause.  Gen.  Stat.  of 
1860,  p.  674. 

The  deposition  of  a  witness  without  the  State  may  be  taken  un- 
der a  commission  issued  to  one  or  more  competent  persons,  or  it 
may  be  taken  before  a  commissioner  appointed  by  the  governor  for 
that  purpose,  in  any  part  of  the  United  States  or  in  any  foreign 
country.  Every  deposition  so  taken  must  be  upon  written  inter- 
rogatories. 

Neither  party  shall  be  permitted  to  attend  at  the  taking  of  the 
deposition,  either  by  attorney  or  agent.  The  deposition  must  be 
taken  in  a  place  separate  and  apart  from  all  other  persons,  and  no 
person  permitted  to  be  present  during  such  examination  except  the 
deponent  and  the  commissioner,  and  such  disinterested  person  as  the 
commissioner  may  think  fit  to  appoint  as  clerk.  The  commissioner 
is  requested,  in  making  his  return,  to  write  upon  the  envelope  the 
names  of  the  parties  to  the  suit  and  the  title  of  the  Court. 


126.  Form  of  caption  and  return. 

STATE  OF  MASSACHUSETTS,) 

County  of  .  ) 

Pursuant  to  the  foregoing  commission,  I  caused  the  said to 

come  before  me  on  the day  of  ,  A.  D.  18 ,  and  having 

sworn  the  said to  testify  the  truth,  the  whole  truth,  and  noth- 
ing but  the  truth  relating  to  the  cause  for  which  the  deposition  is 
taken,  I  examined  the  said ,  and  reduced  his  testimony  to  writ- 
ing. Neither  of  said  parties  was  present  by  himself,  or  by  agent 
or  attorney ;  nor  did  either  of  them  communicate  in  any  manner 
with  the  deponent  whilst  giving  his  deposition ;  and  I  took  said 
deposition  separate  and  apart  from  all  other  persons,  no  person  be- 
ing present  except  myself ;  and  in  taking  the  depositions  I  put  the 
interrogatories  and  cross-interrogatories  to  the  deponent  as  directed 
in  the  foregoing  commission,  and  in  all  respects  fully  and  exactly 
complied  with  the  directions  in  said  commission  in  taking  the 
same.  And  after  the  said  deposition  was  taken  I  carefully  read 

the  same  to  the  said ,  and  he  subscribed  it  in  my  presence. 

,  Commissioner. 


MICHIGAN. 


The  persons  to  whom  a  commission  shall  be  directed,  or  any  of 
them,  shall  execute  it  as  follows : 


238  DEPOSITIONS. 

MICHIGAN— CONTINUED. 

1.  They,  or  one  of  them,  shall  publicly  administer  an  oath  to 
the  witness,  that  the  answers  given  by  him  to  the  interrogatories 
proposed  shall  be  the  truth,  the  whole  truth,  and  nothing  but  the 
truth. 

2.  They  shall  cause  the  examination  of  each  witness  to  be  re- 
duced to  writing,  and  to  be  subscribed  by  him,  and  certified  by  such 
of  the  commissioners  as  are  present  at  the  taking  of  the  same. 

3.  Exhibits  produced  and  proved  before  them  shall  be  annexed 
and  subscribed  by  the  witness,  and  also  certified  by  the  oificers. 

4.  The  commissioners  shall  subscribe  their  names  to  each  sheet 
of  the  depositions.    They  shall  annex  all  the  depositions  and  exhib- 
its to  the  commission  upon  which  their  return  shall  be  indorsed ; 
and  they  shall  close  them  up  under  their  seals,  and  address  the 
same,   when  so  closed,  to  the  clerk  of  the  Court  from  which  the 
commission  issued. 

5.  If  there  shall  be  a  direction  to  return  by  mail,  they  shall  im- 
mediately deposit  the  packet  so  directed  in  the  nearest  post-office. 

6.  If  there  be  a  direction  to  return  by  an  agent  of  the  party,  the 
packet  so  directed  shall  be  delivered  to  such  agent.     This  agent 
shall  make  affidavit  that  he  received  the  same  from  the   hands  of 
the  commissioners,  and  that  it  has  not  been  opened  or  altered  since 
he  received  it.     Comp.  Laws,  p.  1695.     The  oath  shall  be  adminis- 
tered in  the  following  form :    "  You  do  solemnly  swear,   in  the 
presence  of  Almighty  God,  that  the  answers  given  by  you  to  the 
interrogatories  proposed  to  you  shall  be  the  truth,  the  whole  truth, 
and  nothing  but  the  truth :    So  help  you  God." 


127.  Form  of  caption  and  certificate. 

Deposition  of  ,  of  the ,  aged years,  a  witness  pro- 
duced, sworn,  and  examined  on  the day  of  ,  A.  D.  18 , 

at  my  office,  [giving  full  address  of  the  commissioner]  by  virtue  of 

a  commission  issued  out  of  the Court,  for  the  county  of , 

in  the  State  of  Michigan,  on  the day  of  ,  A.  D.  18 , 

and  directed  to  me,  commissioner  for  the  examination  of  -  — ,  a 
witness  in  a  cause  depending  and  at  issue  in  said  Court,  between 
John  Doe,  plaintiff,  and  Richard  Roe,  defendant,  on  the  part  of  said 
plaintiff  [or  defendant].  Having  read  said  commission  and  the 
instructions  thereto  annexed,  and  having  administered  an  oath  to 
said  witness,  that  the  answers  given  by  him  to  the  interrogatories 
proposed  to  him  should  be  the  truth,  the  whole  truth,  and  nothing  but 
the  truth,  I  proceeded  to  the  examination  as  follows,  namely : 

,  of  the  [giving  fall  address  of  witness]  aged years 

and  upwards,  a  witness  produced,  sworn,  and  examined  on  the 
part  of  the  plaintiff  [or  defendant]  in  said  cause,  deposeth  as 
follows,  namely : 

1.  To  the  first  interrogatory,  he  saith : 


DEPOSITIONS.  239 

MICHIGAN— CONTINUED. 

Certificate. 
STATE  OF  MICHIGAN,  ") 

County  of .  ) 

I, the  undersigned  commissioner,  hereby  certify  that  on  this 

day  of ,  A.  D.  18 ,  then ,  of ,  personally  appeared 


before  me  at  my  office ,and,  after  having  taken  the  oath  prescribed 

in  the  instructions  annexed  to  the  commission  mentioned  in  the 
caption  to  the  above  deposition,  which  oath  was  administered  by  me, 
and  taken  by  said  witness  with  uplifted  hands,  [or  by  whatever 
mode]  declared  that  the  foregoing  deposition,  by  him  subscribed, 
contains  the  truth,  the  whole  truth,  and  nothing  but  the  truth ;  said 
witness  residing  without  the  State  of  Michigan.  The  deposition 
was  reduced  to  writing  by  me,  the  said  commissioner  [or  by  a  dis- 
interested person  in  my  presence,  or  by  the  witness  himself]. 

In  witness  whereof,  I  have  hereto  set  my  hand  and  affixed  my 
official  seal,  the  day  and  year  aforesaid. 

,  Commissioner. 


MINNESOTA. 

The  deposition  of  any  witness  without  the  State  may  be  taken 
under  a  commission  issued  to  any  competent  person  in  any  State 
or  country,  and  the  deposition  may  be  used  in  the  same  manner, 
and  subject  to  the  same  conditions  and  objections,  as  if  it  had  been 
taken  in  the  State.  The  deponent  shall  be  sworn  and  examined, 
and  his  deposition  shall  be  written  by  the  officer  or  deponent,  or 
some  disinterested  person,  carefully  read  to  and  subscribed  by  the 
witness,  and  the  commissioner  shall  annex  thereto  a  certificate, 
under  his  hand,  of  the  time  and  manner  of  taking  it,  and  he  shall 
insert  in  the  certificate  the  names  of  the  persons  at  whose  request 
it.  was  taken. 

123.  Form  of  caption  and  return. 

I, ,  commissioner  named  in  the  within  and  above  written 

commission,  do  certify  that  the  said  commission  was  executed  and 

the  testimony  of was  taken  before  me  at ,  on  the day 

of ,  A.  D.  18 ,  at o'clock  in  the  forenoon,  and  was  taken 

at  the  request  of ,  and  reduced  to  writing  by  myself  [or  as  the 

case  may  be].  That  the  said  testimony  was  taken  by  and  pursuant 
to  the  authority  and  requirements  of  said  commission,  [or  stipula- 
tion, as  the  case  may  be]  upon  the  interrogatories  hereto  annexed 
and  herewith  returned.  That  said  witness  before  examination  was 
sworn  to  testify  the  truth,  the  whole  truth,  and  nothing  but  the 
truth  relative  to  the  cause  specified  in  said  commission,  and  that 
the  testimony  of  said  witness  was  carefully  read  to  [or  by]  said 
witness,  by  me,  and  then  by  him  subscribed  in  my  presence. 

,  Commissioner. 


240  DEPOSITIONS. 


MISSISSIPPI. 

When  witnesses  are  non-residents,  a  commission  to  take  their  dep- 
osition may  be  directed  to  one  or  to  several  commissioners  in  the 
alternative  by  name,  or  to  any  judge  of  a  Court  of  Record,  justice 
of  the  peace,  mayor  or  chief  magistrate  of  a  city  or  town,  com- 
missioner appointed  by  the  governor  of  the  State,  or  other  person 
authorized  to  administer  oaths  by  the  law  of  the  place  where  the 
deposition  is  taken,  and  the  certificate  o£  any  such  officer  shall  be 
prima  facie  evidence  of  his  official  character,  and  his  authority 
to  administer  oaths.  The  witnesses  shall  be  sworn  by  the  commis- 
sioner to  testify  the  whole  truth  and  nothing  but  the  truth,  and  the 
commissioners,  or  one  of  them,  shall  carefully  and  impartially  ex- 
amine the  witness,  on  the  interrogatories  and  cross-interrogatories 
annexed  to  the  commission,  and  shall  cause  the  testimony  to  be 
written  down  by  himself,  or  by  the  witness  or  some  disinterestei 
person  in  his  presence,  and  subscribed  by  the  witness,  and  the  testi- 
mony so  taken,  with  the  commission  and  interrogatories,  and  every 
exhibit  and  voucher  relating  thereto,  and  also  a  certificate  by  the 
commissioner  of  all  his  proceedings  therein,  shall  be  sealed  up  and 
directed  to  the  clerk  of  the  Court  where  the  action  is  pending. 
The  commissioner  shall  indorse  the  style  of  the  cause  and  the 
word  "  deposition  "  on  the  envelope.  Rev.  Code  of  1871,  Sec.  794. 


129.  Form  of  caption  and  certificate. 

Be  it  remembered,  that  on  this day  of ,  A.  D.  18 ,  by 

virtue  and  in  pursuance  of  a  commission  to  me  directed,  from  the 
Court  for  the  Judicial  District  of  the  State  of  Missis- 
sippi, to  take  the  deposition  of ,  a  witness  for  the  complainant 

in  a  certain  cause  therein  pending,  wherein  John  Doe  is  complain- 
ant and  Richard  Roe  is  defendant,  on  the  interrogatories  and 
cross-interrogatories  annexed  to  and  accompanying  said  commission, 

I  caused  the  said ,  a"*person   of  sound  mind,  and  upwards  of 

twenty-one  years  of  age,  to  come  before  me  at  my  office   in . 

Said  ,  being  by  me  first  duly  cautioned  to  speak  the  truth,  the 

whole  truth,  and  nothing  but  the  truth,  in  answer  to  the  interroga- 
tories and  cross-interrogatories,  did  depose  and  say : 

In  answer  to  interrogatory  first : 

In  answer  to  interrogatory  second  : 

[Signature  of  witness.'] 

Sworn  to  and  subscribed  before  me  at ,  the day  of , 

A.  D.  18 .  ,  Commissioner. 

Certificate. 

STATE  OF  MISSISSIPPI,  ") 

County  of ,  ) 

I, ,  specially  appointed  a  commissioner  in  the  cause  styled  in 

the  caption  of  the  foregoing  deposition,  to  take  the  testimony   of 


DEPOSITIONS.  241 

MISSISSIPPI— CONTINUED. 

,  a  witness  for  the  complainant  in  said  cause,  do  hereby  certify 

that  I  caused  to  come  before  me  the  said ,  at ,  and  he,  be- 
ing by  me  first  duly  cautioned,  sworn,  and  examined  to  speak  the 
truth,  the  whole  truth,  and  nothing  but  the  truth,  in  answer  to  the 
said  interrogatories  and  cross-interrogatories  did  give  the  foregoing 

deposition ;  that  the  answers  of  the  said were  by  me  reduced 

to  writing  in  the  present  of  said  witness,  and  carefully  read  to 
and  thoroughly  understood  by  said  witness,  as  his  deposition  in  said 
cause,  and  that  he  signed  the  same  as  his  deposition  in  my  presence, 
and  that  the  questions  propounded  to  said  witness,  and  to  which  he 
answered,  are  the  direct  and  cross-interrogatories  accompanying  said 
commission ;  that  said  deposition  has  in  no  manner  been  changed 
or  altered  since  the  same  was  subscribed  by  the  said  witness, 
but  that  the  same  was  in  my  possession  up  to  the  time  of  sealing 
and  delivering  the  same  to  the  post-office,  [or  party,  as  the  case  may 
be]  directed  to  the  clerk  of  said  Court. 

In  witness  whereof,  I  have  hereunto  set  my  hand  and  affixed  my 

seal,  this day  of A.  D.  18 . 

,  Commissioner. 


MISSOURI 

In  the  State,  the  commission  may  be  directed  to  any  judge, 
justice  of  the  peace,  notary  public,  or  clerk  of  a  Court  of  Record, 
being  in  the  county  where  such  testimony  is  to  be  taken.  Out  of 
the  State,  the  commission  may  be  directed  to  and  executed  by 
any  clerk  or  judge  of  a  Court  of  Record,  or  notary  public  in  any 
of  the  United  States.  2  Wag.  Stat.  992. 

The  officer  shall  reduce  to  writing  all  the  answers  of  the  wit- 
nesses ;  and  all  the  questions  and  answers  shall  be  written  in  the 
English  language,  and,  being  distinctly  read  to  such  witness,  shall 
be  sworn  to  and  subscribed  by  him.  The  officer  shall  have  power  to 
adjourn  from  day  to  day,  whenever  necessary.  He  shall  attach  a 
certificate,  stating  the  time  and  place,  when  and  where  the  deposi- 
tions were  taken ;  that  the  witnesses  were  duly  sworn  as  to  the 
truth  of  their  depositions,  and  that  they  subscribed  the  same ;  and 
yhall  inclose  them,  together  with  the  commission  and  evidence  of 
notice ;  and  the  whole,  carefully  sealed  up,  shall  be  sent  by  the 
officer,  by  mail,  to  the  clerk  of  the  Court.  The  official  character 
of  the  officer  should  be  certified  to,  by  some  Court  of  Record,  where 
he  acts  under  seal. 


130.  Form  of  caption  and  certificate. 

Depositions  of  witnesses,  produced,  sworn,  and  examined  on  the 
day  of  ,  in  the  year  of  our  Lord  18 ,  between  the 


NOTARIES — 16. 


242  DEPOSITIONS. 

MISSOURI— CONTINUED. 

hours  of  eight  o'clock  in  the  forenoon  and  six  o'clock  in  the  after- 
noon of  that  day,  at ,  [here  give  fall  official  address']  before 

me,  a  commissioner  appointed  in  a  certain  cause,  now  depending 

in  the Court,  of  the  county  of  ,  in  the  State  of  Missouri, 

between  John  Doe,  plaintiff,  and  Richard  Roe,  defendant,  on  the 
part  of  the  plaintiff  [or  defendant]  ;  A  B,  of  lawful  age,  being  pro- 
duced, sworn,  and  examined  on  the  part  of  the  plaintiff,  deposeth 
and  saith : 

The  officer  will  annex",  at  the  foot  of  the  deposition  of  each  wit- 
ness, the  following  certificate : 

Subscribed  and  sworn  to  before  me  on  the  day,  at  the  place,  and 
within  the  hours  aforesaid. ,  Commissioner. 

Certificate. 

I, ,  a within  and  for  the  city  and  county  of ,  in  the 

State  of  ,  do  certify  that,  in  pursuance  of  the  [within  or  an- 
nexed, as  the  case  may  be]  commission  or  notice,  came  before  me, 

at ,  in  the  county  and  State  last  aforesaid,  [here  insert  names 

of  witnesses}  who  were  by  me  severally  sworn  [or  affirmed]  to 
testify  the  whole  truth  of  their  knowledge  touching  the  matter  in 
controversy  aforesaid ;  that  they  were  examined,  and  their  exami- 
nation reduced  to  writing  and  subscribed  by  them  respectively,  in 
my  presence,  on  the  day,  between  the  hours,  and  at  the  place  in  that 
behalf  first  aforesaid,  and  their  said  depositions  are  now  herewith 
returned.  [If  the  officer  know  the  residence  of  the  witness,  he  will 
include  the  following  in  his  certificate :]  And  I  further  certify  that 
said  A  B  is  a  resident  of  the  county  of  in  the  State  of . 

Given  at ,  in  the  county  of  and  State  of ,  this  — 

day  of  ,  18 .  ,  Commissioner. 

The  depositions  must  be  begun  on  the  day  mentioned  in  the 
notice;  and  if  they  cannot  be  finished  on  that  day,  the  tak- 
ing of  them  may  be  adjourned  to  the  succeeding  day,  at  the 
same  place,  and  between%he  same  hours.  The  person  taking  them 
should  in  such  case  make  the  following  entry,  closing  the  business 
for  that  day : 

Not  being  able  to  complete  the  taking  of  said  depositions,  by 
reason  that  [here  insert  the  cause'}  I  adjourned  the  further  taking 
of  the  same  till  to-morrow,  then  to  be  continued,  at  the  same  place 
and  between  the  same  hours  mentioned  in  the  annexed  notice. 

,  Commissioner. 

On  the  succeeding  day  let  the  person  taking  the  deposition  com- 
mence as  follows : 

Pursuant  to  the  adjournment,  as  above  stated,  on  the day  of 

18 ,  between  the  hours  of  o'clock  in  the  forenoon, 


/  /  / 

and o'clock  in  the  afternoon,  at  the  county  of ,  I  contin- 
ued the  taking  of  said  depositions  as  follows,  viz  : ,  in  contin- 
uation of  his  deposition  commenced  yesterday,  on  his  oath  further 
says,  etc. 


DEPOSITIONS.  243 


In  the  Territory,  a  deposition  may  be  taken  before  any  judge  or 
clerk,  or  any  justice  of  the  peace,  or  notary  public.  After  the  ex- 
amination is  completed,  the  deposition  shall  be  carefully  read  to  the 
witness,  and  corrected  by  him.  in  any  particular ;  it  shall  then  be 
subscribed  by  the  witness,  certified  by  the  judge  or  officer  taking 
the  deposition,  inclosed  in  an  envelope  or  wrapper,  sealed  and  di- 
rected to  the  clerk  of  the  Court,  or  to  such  person  as  the  parties 
in  writing  may  agree  upon.  Laws  of  Montana,  p.  131. 

The  deposition  of  a  witness  out  of  the  Territory  shall  be  taken 
upon  commission  issued  from  the  Court  where  the  suit  is  pending. 
It  shall  be  issued  to  a  person  agreed  upon  between  the  parties,  or, 
if  they  do  not  agree,  to  any  judge  or  justice  of  the  peace  selected 
by  the  officer  granting  the  commission,  or  to  a  commissioner  ap- 
pointed by  the  governor  of  the  Territory  to  take  affidavits  and  dep- 
ositions in  other  States,  or  to  a  notary  public.  The  commission 
shall  authorize  the  commissioner  to  administer  an  oath  to  the  wit- 
ness, and  to  take  his  deposition  in  answer  to  the  interrogatories,  or, 
when  the  examination  is  to  be  without  interrogatories,  in  respect  to 
the  question  in  dispute,  and  to  certify  the  deposition  to  the  Court 
in  a  sealed  envelope,  directed  as  in  the  case  of  depositions  taken 
within  the  State.  Laws  of  Montana,  p.  133. 

The  form  for  California  may  be  used. 


NEBRASKA. 

Depositions  in  other  States  and  Territories  may  be  taken  before 
any  of  the  following  officers  :  A  judge,  justice,  or  chancellor  of  any 
Court  of  Record,  a  justice  of  the  peace,  notary  public,  mayor,  or 
chief  magistrate  of  any  city  or  town  corporate,  a  commissioner  ap- 
pointed by  the  governor,  or  any  person  appointed  by  a  special  com- 
mission. Depositions  out  of  the  State  must  be  taken  on  written 
interrogatories,  unless  the  parties  otherwise  agree.  Gen.  Stat.  of 
1873,  p.  588. 

The  deposition  shall  be  written  in  the  presence  of  the  officer 
taking  the  same,  either  by  the  officer,  the  witness,  or  some  disinter- 
ested person.  The  deposition,  when  completed,  shall  be  sealed  up 
and  indorsed  with  the  title  of  the  cause  and  the  name  of  the  officer 
taking  the  same,  and  by  him  addressed  and  transmitted  to  the  clerk 
of  the  Court. 

The  officer  taking  the  deposition  sufficiently  authenticates  his  of- 
ficial character  by  the  seal  of  the  Court,  or  his  official  seal ;  but  if 
the  officer  have  no  official  seal,  the  deposition,  when  not  taken 
within  the  State,  shall  be  certified  and  signed  by  such  officer,  and 
shall  be  further  authenticated,  either  by  parol  proof  adduced  in 
Court,  or  by  the  official  certificate  and  seal  of  any  secretary  or 
other  officer  of  State  keeping  the  great  seal  thereof,  or  of  the  clerk  of 


244  DEPOSITIONS. 

NEBRASKA— CONTINUED. 

any  Court  having  a  seal.  The  officer  taking  a  deposition  shall  an- 
nex a  certificate  showing  the  following  facts  :  1.  That  the  witness 
was  sworn  to  testify  the  truth,  the  whole  truth,  and  nothing  but 
the  truth.  2.  That  the  deposition  was  reduced  to  writing  by  some 
proper  person,  naming  him.  3.  That  the  deposition  was  written 
and  subscribed  in  the  presence  of  the  officer  certifying  thereto.  4. 
That  the  deposition  was  taken  at  the  time  and  place  specified  in  the 
notice.  Gen.  Stat.  589. 


131.  Form  of  caption  and  certificate. 

Depositions  of  witness  taken  in  an  action  pending  in  the Court 

of  County,  in  the  State  of  Nebraska,  wherein  A  B  is  plaintiff 

and  C  D  is  defendant,  and  for  said  plaintiff  [or  defendant]  in  pursu- 
ance of  the  notice  hereto  annexed.  \Here  state  which  of  the  par- 
ties, their  agents  or  attorneys,  were  present^ 

,  of  the  county  of  and  State  of ,  of  lawful  age, 

being  first  duly  sworn  by  me  as  hereinafter  certified,  deposes  as  fol- 
lows : 

If  more  than  one  witness  is  called  to  testify,  let  each  succeeding 
one  commence  as  follows  : 

Also, ,  of  the  county  of  and  State  of  ,  of  lawful 

age,  being  first  duly  sworn  by  me  as  hereinafter  certified,  deposes 
as  follows : 

Certificate. 

I, ,  do  hereby  certify  that  the  above-named  and 

were  by  me  first  duly  sworn  to  testify  the  truth,  the  whole  truth, 
and  nothing  but  the  truth ;  that  the  foregoing  depositions,  by  them 
respectively  subscribed,  were  reduced  to  writing  by  me,  [or  by  the 
witness,  or  by  M  N,  a  disinterested  person]  and  were  written,  and, 
by  said  witnesses  respectively,  subscribed  in  my  presence,  and  were 
taken  at  the  time  and  place«pecified  in  the  notice  hereunto  attached. 

Witness  my  hand  and  seal,  [if  one  there  be]  this day  of 

,  A.  D.  18 .  ,  Commissioner. 


NEVADA. 

In  the  State,  a  deposition  may  be  taken  before  any  judge  or  clerk 
of  a  Court,  or  any  justice  of  the  peace  or  notary  public.  Either 
party  may  attend  such  examination,  and  put  such  questions  as  may 
be  proper.  The  deposition,  when  completed,  shall  be  carefully  read 
to  and  corrected  by  the  witness  in  any  particular,  if  desired ;  it 
shall  then  be  subscribed  by  the  witness,  certified  by  the  officer,  in- 
closed in  an  envelope  or  wrapper,  sealed  and  directed  to  the  clerk 
of  the  Court,  or  to  such  person  as  the  parties  in  writing  may  agree 
upon. 


DEPOSITIONS.  245 

NEVADA— CONTINUED. 

Out  of  the  State,  the  deposition  of  a  witness  may  be  taken  on  a 
commission  directed  to  a  person  agreed  upon  by  the  parties,  or,  if  they 
do  not  agree,  to  any  judge  or  justice  of  the  peace,  selected  by  the 
officer  granting  the  commission,  or  to  a  commissioner  appointed  by 
the  Governor  of  the  State,  to  take  affidavits  and  depositions  in 
other  States  or  Territories.  Comp.  Laws,  Sec.  1473.  The  com- 
mission shall  authorize  the  commissioner  to  administer  an  oath  to 
the  witness,  and  to  take  his  deposition  in  answer  to  the  interroga- 
tories, or,  when  the  examination  is  to  be  without  interrogatories,  in 
respect  to  the  question  in  dispute,  and  to  certify  the  deposition  to 
the  Court,  in  a  sealed  envelope,  directed  to  the  clerk,  or  other  person 
designed  or  agreed  upon,  and  forwarded  to  him  by  mail  or  other 
usual  channel  of  conveyance.  Sec.  1475. 


132.  Form  of  caption  and  certificate. 

Depositions  of  witnesses  produced,  sworn,  [or  affirmed]  and  ex- 
amined, the day  of  ,  in  the  year  one  thousand  eight  hun- 
dred and ,  at ,  under  and  by  virtue  of  a  commission  issued 

out  of District  Court  of  the Judicial  District  of  the  State 

of  Nevada,  in  and  for  the  county  of ,  in  a  certain  cause  therein 

depending  and  at  issue  between and ,  as  follows :  , 

of  ,  by  occupation  a ,  aged years  and  upwards,  being 

duly  and  publicly  sworn,  [or  affirmed]  pursuant  to  the  directions 
hereto  annexed,  and  examined  on  the  part  of  the  plaintiff,  [or 
defendant]  doth  depose  and  say  as  follows,  namely: 

To  the  first  interrogatory  he  saith  : 

To  the  second  interrogatory  he  saith :     \_And  so  on.] 

When  the  witness  has  finished  his  deposition,  let  him  subscribe 
it,  and  the  acting  commissioner  will  certify  as  follows : 

Examination  taken,  reduced  to  writing,  and  by  the  witness  sub- 
scribed and  sworn  to,  this day  of  ,  A.  D.  18 ,  before 

me.  ,  Commissioner. 

"When  any  papers  or  exhibits  are  produced  and  proved,  they 
must  be  annexed  to  the  depositions  in  which  they  are  referred  to, 
and  be  subscribed  by  the  witness,  and  be  indorsed  by  the  acting 
commissioner  in  this  manner : 

At  the  execution  of  a  commission  for  the  examination  of  wit- 
nesses between ,  plaintiff,  and ,  defendant,  this  paper  writ- 
ing was  produced  and  ^worn  to  by ,  and  by  him  deposed  unto, 

at  the  time  of  his  examination  before  me. 

,  Commissioner. 

The  acting  commissioners  will  sign  their  names  to  each  half-sheet 
of  the  depositions  and  exhibits.  The  commissioner  will  make  re- 
turn on  the  back  of  the  commission  by  indorsement,  thus : 


246  DEPOSITIONS. 

NEVADA— CONTINUED. 

The  execution  of  this  appears  in  certain  schedules  hereunto 
annexed.  ,  Commissioner. 

The  depositions  and  exhibits  [if  any]  shall  be  annexed  to  the 
commission,  and  all  folded  and  bound  with  tape.  The  commission- 
er will  set  his  seal  at  the  several  meetings  or  crossings  of  the  tape, 
indorse  their  names  on  the  outside,  and  direct  to  the  clerk  of  the 
Court.  When  the  commission  is  returned  by  mail,  it  should  be 
deposited  in  the  nearest  "post-office,  the  commissioner  making  the 
following  indorsement  thereon  : 

Deposited  in  the  post-office  at ,  this day  of ,  18 , 

by  me.  ,  Commissioner. 


NEW  HAMPSHIRE. 

Depositions  in  the  State  may  be  taken  by  any  justice  or  notary 
public ;  if  taken  out  of  the  State,  before  any  commissioner  ap- 
pointed by  the  governor  to  take  acknowledgments,  etc.,  or  before 
any  judge,  justice  of  the  peace,  or  notary  public.  Where  a  dep- 
osition is  taken  out  of  the  State,  the  official  character  of  the 
person  before  whom  it  is  taken  must  be  duly  certified  by  some 
cleric  of  a  Court  of  Record,  under  its  seal,  or  by  the  secretary  of 
State,  under  the  seal  of  the  State,  which  certificate  must  be  annex- 
ed to  the  caption.  The  witness  must  sign  the  deposition  and  make 
oath  that  it  contains  the  truth,  the  whole  truth,  and  nothing  but 
the  truth,  concerning  the  cause  for  which  it  is  taken.  The  officer 
shall  certify  that  the  oath  was  administered,  the  time  and  place  of 
taking  the  deposition,  the  case  and  Court  in  which  it  is  to  be  used, 
that  the  adverse  party  was  or  was  not  present,  was  or  was  not 
notified,  and  that  he  did  or  did  not  object.  A  copy  of  the  notice 
left  with  the  adverse  party^Jiis  agent  or  attorney,  with  the  return 
of  the  officer  or  affidavit  of  the  person  leaving  such  notice  thereon, 
stating  the  time  of  leaving  the  same,  shall  be  annexed  to  the 
caption  of  the  deposition,  when  the  adverse  party  does  not  attend. 
Depositions  shall  be  sealed  up  by  the  officer,  and  directed  to  the 
Court  or  justice  before  whom  they  are  to  be  used,  with  a  brief 
description  of  the  case,  and  shall  be  so  delivered  into  Court.  Gen. 
Stat.  p.  430.  It  is  required  that  the  commissioner  note  on  the 
deposition  the  fees,  and  tax  the  same. 


133.  Form  of  caption  and  certificate. 

STATE  OF  NEW  HAMPSHIRE,  ) 

County  of ,  j  ss< 

Personally  appearing  the  within  named  ,  at  ,  in  said 

county,  on  this day  of  ,  A.  D.  18 ,  and  made  solemn 


DEPOSITIONS.  247 

NEW  HAMPSHIRE— CONTINUED. 

oath  that  the  within  deposition,  by  him  subscribed,  contains  the 
truth,  the  whole  truth,  and  nothing  but  the  truth  relative  to  the 
cause  for  which  it  was  taken. 

Taken  at  the  request  of  ,  of  the  aforesaid,  to  be  used 

at  the Court,  to  be  held  at ,  in  and  for  the  county  of , 

in  the  State  of  New  Hampshire,  on ,  in  a  plea  wherein  , 

of ,  aforesaid,  is  plaintiff,  and  ,  of   ,  aforesaid,  is 

defendant.    That  said ,  being  duly  notified,  was  [or  was  not] 

present,  and  did  not  object.  The  deponent  living  more  than  ten 
miles  from  the  place  of  trial  is  the  cause  of  this  caption.  The 
taking  of  said  deposition  was  commenced  at  11  o'clock  of  the 
forenoon  in  said  day,  and  continued  till  the  whole  was  completed 
before  me.  * ,  Commissioner. 

Commissioner's  fees $ 

Deponent's  fees 

Notification 

Service  of  notification 

Subpoena . . . 

•Services. .  


Taxed  on  the day  of  ,  18 ,  by 

,  Commissioner. 

The   depositions    should    be    sealed    up    in  an   envelope,    and 

addressed  to  the Court  for  the  county  of  ,  in  the  State 

of  New  Hampshire,  and,  in  addition,  should  be  written  on  the  en- 
velope as  follows : 

Inclosed  are  depositions  to  be  used  in  the  action  in  which 

is  plaintiff  and is  defendant.     Taken  and  sealed  by  me, 

,  Commissioner. 


NEW  JERSEY. 

Depositions  of  witnesses  residing  out  of  the  State  may  be  taken 
by  any  chancellor,  judge  of  a  Supreme,  Circuit,  or  District  Court, 
commissioner  appointed  by  the  governor  to  take  acknowledgments 
and  proofs  of  deeds,  residing  in  the  State  where  such  witness  is,  or 
a  commissioner  appointed  by  the  Court  in  which  such  suit  is 
pending. 

The  testimony  is  to  be  taken  on  oath  or  affirmation,  and  the 
interrogatories  and  answers  reduced  to  writing  by  the  officer,  and 
subscribed  by  the  deponent  in  his  presence.  The  officer  himself 
must  first  take  and  subscribe  an  oath  or  affirmation  to  fairly  and 
impartially  take  the  deposition,  before  some  person  lawfully  author- 
ized to  administer  oaths  where  the  officer  resides.  The  testimony 


t!48  DEPOSITIONS. 

NEW  JERSEY— CONTINUED. 

must  be  certified,  sealed  up,  indorsed,  directed,  and  forwarded  to 
the  judge  of  the  Court  wherein  the  cause  is  pending. 


134.  Form  of  caption. 

STATE  OF  NEW  JERSEY,  ") 

County  of ,  ,|  Si 

Be  it  remembered,  that  on  this day  of  ,  in  the  year 

18 ,  before  me, ,  appeared and ,  produced  before 

me  as  witnesses  in  a  suit  now  depending  in  the Court  of  the 

State  of  New  Jersey,  wherein  John  Doe  is  plaintiff  and  Richard 
Roe  is  defendant.  And  I,  having  first  taken  an  oath  fairly  and  im- 
partially to  take  the  depositions  of  Witnesses  before ,  of  the 

Court,  who  is  lawfully  authorized  to  administer  oaths  in  this 

State  and  county,  proceeded  to  take  the  testimony  of  said  witnesses 

hereinafter  named,  upon  interrogatories  put  by ,  who  appeared 

on  behalf  of  the  plaintiff,  and ,  who  appeared  on  behalf  of  the 

defendant,  and  reduced  such  interrogatories  and  the  answers  thereto 
in  writing,  and  caused  each  witness  to  subscribe  his  deposition  in 
my  presence,  as  follows :  ,  Commissioner. 

A  B,  a  witness  produced  on  the  part  of  the  plaintiff,  [or  defend- 
ant] being  by  me  first  duly  sworn,  according  to  law,  doth  depose 
and  say  [or  doth  solemnly  declare]  as  f  ollows : 


NEW  YORK. 

The  deposition  of  witnesses  out  of  the  State  may  be  taken  on 
a  commission  directed  to  one  or  more  competent  persons,  authoriz- 
ing them,  or  any  one  of  them,  to  examine  witnesses  on  oath,  upon  the 
interrogatories  annexed.  It  "is  customary  to  issue  the  commission 
to  an  attorney.  With  the  commission  and  interrogatories  are  in- 
closed printed  instructions  for  the  guidance  of  the  commissioner. 
The  following  are  the  statutory  directions  for  executing  the  com- 
mission :  1.  The  commissioners,  or  any  one  of  them,  shall  publicly 
administer  an  oath  to  the  witnesses,  that  the  answers  given  by  them 
shall  be  the  truth,  the  whole  truth,  and  nothing  but  the  truth.  2. 
They  shall  cause  the  examination  of  each  witness  to  be  reduced  to 
writing,  and  to  be  subscribed  by  him  and  certified  by  the  commis- 
sioners present.  3.  Exhibits  produced  and  proved  shall  be  annexed 
to  the  depositions  to  which  they  relate,  shall  be  subscribed  by  the 
witness,  and  certified  by  the  commissioners.  4.  The  commission- 
ers shall  subscribe  their  names  to  each  sheet  of  the  depositions ; 
they  shall  annex  all  the  exhibits  to  the  commission,  upon  which 
their  return  shall  be  indorsed,  and  they  shall  close  them  up  under 
their  seals,  and  shall  address  the  same,  when  so  closed,  to  the  clerk 
of  the  Court  from  which  the  commission  issued.  5.  If  there  be  a 


DEPOSITIONS.  249 

NEW  YORK— CONTINUED. 

direction  on  the  commission  to  return  the  same  by  mail,  they  shall 
immediately  deposit  the  packet,  so  directed,  in  the  nearest  post- 
office.  6.  If  there  be  a  direction  to  return  the  same  by  an  agent 
of  the  party  who  sued  out  the  commission,  the  packet,  so  directed, 
shall  be  delivered  to  such  agent.  3  Rev.  Stat.  (Gth  Ed.)  p.  655. 

The  oath  is  administered  in  the  following  form :  "  You  do  swear 
that  the  answers  which  shall  be  given  by  you  to  the  interrogatories 
proposed  to  you,  shall  be  the  truth,  the  whole  truth,  and  nothing 
but  the  truth :  So  help  you  God."  The  oath  shall  be  administered 
(except  in  the  cases  hereinafter  mentioned)  by  the  witness  laying 
his  hand  upon  and  kissing  the  gospels.  But,  should  the  witness  de- 
sire it,  he  may  be  sworn  in  the  following  form :  "  You  do  swear,  in 
the  presence  of  the  ever-living  God,"  and  while  so  swearing  he 
may  or  may  not  hold  up  his  hand,  at  his  discretion.  Or,  when 
the  witness  has  conscientious  scruples,  he  can  affirm  in  the  follow- 
ing manner:  "You  do  solemnly,  sincerely,  and  truly  declare  and 
affirm,"  omitting  the  words  "  so  help  you  God." 


135.  Form  of  caption  and  certificate. 

Depositions  of  witnesses,  produced,  sworn,  [or  affirmed]  and  ex- 
amined the day  of ,  in  the  year  one  thousand  eight  hund- 
red and ,  under  and  by  virtue  of  a  commission  issued  out  of 

the ,  in  a  certain  action  therein  pending  and  at  issue  between 

John  Doe,  plaintiff,  and  Richard  Roe,  defendant,  as  follows : 

A  B,  of ,  aged and  upwards,  examined  on  the  part  of 

the  plaintiff,  [or  defendant]  doth  depose  and  say  as  follows,  namely: 
First.  To  the  first  interrogatory,  he  saith,  etc. 

After  the  deposition  is  finished,  let  the  witness  subscribe  his 
name,  and  the  commissioner  will  certify  as  follows : 

Certificate. 

Examination  taken,  reduced  to  writing,  and  by  the  witness  sub- 
scribed and  sworn  to,  this day  of  ,  18 ,  before  me. 

,  Commissioner. 


NORTH  CAROLINA. 

The  depositions  shall  be  taken  on  commission  issuing  from  the 
Court,  and  under  the  seal  thereof,  when  the  commissioner  resides 
out  of  the  county,  by  one  or  more  commissioners  who  shall  be  of 
kin  to  neither  party,  and  shall  be  appointed  by  the  clerk.  Battle's 
Digest,  p.  227. 

The  evidence  shall  be  reduced  to  writing  by  the  commissioners, 
they  returning  the  interrogatories  accompanying  the  commission 
and  the  evidence  hi  writing,  together  with  a  certificate  under  their 


250  DEPOSITIONS. 

NORTH  CAROLINA— CONTINUED. 

hands  and  seals,  stating  when,  where,  and  how  the  commission  has 
been  executed,  inclosed,  and  sealed  in  an  envelope,  with  the  name 
of  the  case  indorsed  thereon  and  directed  to  the  clerk  of  the  Court 
from  which  the  commission  issued. 
The  form  for  New  York  may  be  used. 


OHIO. 

Depositions  may  be  taken  in  the  State  before  a  judge  or  clerk  of 
the  Supreme  Court,  the  Court  of  Common  Pleas,  or  Probate  Court, 
before  a  justice  of  the  peace,  notary  public,  mayor  or  chief  mag- 
istrate of  any  city  or  town  corporate,  or  before  a  master  commis- 
sioner, or  any  person  empowered  by  a  special  commission.  Out  of 
the  State,  depositions  may  be  taken  before  a  judge,  justice,  or  chan-, 
cellor  of  any  Court  of  Record,  a  justice  of  the  peace,  notary  pub- 
lic, mayor,  or  chief  magistrate  of  any  city  or  town  corporate,  or 
commissioner  appointed  by  the  governor  of  the  State  to  take  dep- 
ositions, or  any  person  authorized  by  a  special  commission  from  the 
State.  2  S.  &  C.  1041. 

The  deposition  shall  be  written  in  the  presence  of  the  officer, 
either  by  him,  the  witness,  or  some  disinterested  person,  and  sub- 
scribed by  the  witness.  The  deposition  so  taken  shall  be  sealed  up 
and  indorsed  with  the  title  of  the  cause  and  the  name  of  the  offi- 
cer taking  the  same,  and  by  him  addressed  to  the  clerk  of  the  Court 
where  the  action  or  proceeding  is  pending.  2  S  &  C.  1042. 

The  officer  shall  annex  a  certificate  stating  the  following  facts  : 
1.  That  the  witness  was  first  sworn  to  testify  the  truth,  the  whole 
truth,  and  nothing  but  the  truth.  2.  That  the  deposition  was  re- 
duced to  writing  by  some  proper  person,  naming  him.  3.  That  the 
deposition  was  written  and  subscribed  in  the  presence  of  the  officer 
certifying  thereto.  4.  Tkat  the  deposition  was  taken  at  the  tune 
and  place  specified  in  the  notice. 

Officers  taking  depositions,  whether  in  the  State  or  out  of  it,  can 
authenticate  their  official  character  by  their  seal  and  certificate ; 
but  when  they  have  no  official  seal,  the  deposition,  if  not  taken 
within  the  State,  shall  be  certified  and  signed  by  the  officer,  and 
shall  be  further  authenticated,  either  by  parol  proof  addused  in 
Court,  or  by  the  official  certificate  and  seal  of  any  secretary  or 
other  officer  of  State  keeping  the  great  seal  thereof,  or  of  the  clerk  or 
prothonotary  of  any  Court  having  a  seal.  When  the  deposition  is 
taken  under  a  special  commission,  it  shall  be  sufficiently  authenti- 
cated by  the  official  signature  of  the  officer  or  commissioner  taking 
the  same. 

136.  Form,  of  caption  and  certificate. 

The  depositions  of  witnesses  to  be  used  in  evidence  in  a  certain 
action  now  pending  in  the Court  in  the  County  of  ,  in 


DEPOSITIONS.  •  251 

OHIO CONTESTDED. 

the  State  of  Ohio,  wherein  John  Doe  is  plaintiff  and  Richard  Roe 

is  defendant,  A  B,  of  ,  in  the  county  of  and  State  of 

,  of  lawful  age,  being  first  duly  sworn,  deposes  and  says  as 

follows : 

Certificate. 
STATE  OP  OHIO,") 

County  of ,  jss< 

I, ,  do  hereby  certify  that  A  B  and  C  D  were  by  me  first 

duly  sworn  to  testify  the  truth,  the  whole  truth,  and  nothing  but 
the  truth ;  that  the  depositions  by  them  respectively  subscribed 
were  reduced  to  writing  by  M  N,  a  disinterested  person,  and  were 
written  and  subscribed  in  my  presence,  and  taken  at  the  time  and 
place  specified  in  the  notice  hereto  annexed. 

,  Commissioner. 


OREGON. 

The  deposition  of  a  witness  out  of  the  State  may  be  taken  upon 
commission  issued  from  the  Court,  or  without  commission  before  a 
commissioner  appointed  by  the  Governor  of  the  State  to  take  dep- 
ositions in  other  States  or  countries.  The  commission  may  be 
issued  to  a  person  agreed  upon  by  the  parties,  or,  if  they  do  not 
agree,  to  a  judge,  justice  of  the  peace,  notary  public,  or  clerk  of  a 
Court,  selected  by  the  officer  issuing  it.  The  examination  may  be 
without  written  interrogatories,  if  the  parties  agree  to  that  mode. 
The  deposition,  sealed,  must  be  directed  to  the  clerk  of  the  Court. 

In  the  State,  it  is  provided  that  the  officer  taking  a  deposition 
shall  append  a  certificate  under  the  seal  of  his  office,  if  any,  to  the 
effect  that  the  deposition  was  taken  before  him,  or  at  a  place  men- 
tioned, between  certain  hours  of  a  day  or  days  mentioned,  and 
reduced  to  writing  by  a  person  therein  named ;  that,  before  pro- 
ceeding to  the  examination,  the  witness  was  duly  sworn  to  tell  the 
truth,  the  whole  truth,  and  nothing  but  the  truth,  and  that  the 
deposition  was  read  to  or  by  the  witness,  and  then  by  him  subscribed. 
The  package  may  be  sent  by  mail,  or  other  usual  channel  of  con- 
veyance. Gen.  Stat.  p.  351. 


137.  Form  of  caption  and  certificate. 

I, ,  of  ,  in  the  county  of ,  in  the  State  of  ,  be- 
ing first  duly  sworn  to  tell  the  truth,  the  whole  truth,  and  nothing 
but  the  truth,  in  answer  to  the  interrogatories  and  cross-interroga- 
tories annexed  to  the  foregoing  commission,  depose  and  say  as 
follows : 

To  the  first  interrogatory,  I  answer : 

The  deposition  should  be  without  interlineation,  and  each  page, 


252  •  DEPOSITIONS. 

OREGON— CONTINUED. 

and  each  line  of  the  page,  should  be  numbered.  The  name  of  the 
witness,  and  words  "  direct  examination,"  or  "  cross-examination," 
as  the  case  may  be,  should  be  placed  upon  the  margin  of  each  page 
of  the  deposition. 

Certificate. 
STATE  or  OREGON,  ") 
County  of ,        j  s! 

This  certifies  that  I, of  the  county  of  ,  in  the  State  of 

,  by  virtue  of  the  foregoing  commission  to  me  directed,  caused 

the  above  named  ,  the  deponent  therein  mentioned,  to  come 

before  me  in  my  office  in  said  county  of  ,  on  the  day  of 

,  A.  D.  18 ,  between  the  hours  of  o'clock  A.  M.  and 

p.  M.  of  said  day,  and  he,  being  then  and  there  duly  cautioned 

and  sworn  to  tell  the  truth,  the  whole  truth,  and  nothing  but  the 
truth,  in  answer  to  the  several  interrogatories  and  cross-interroga- 
tories  thereto  annexed,  gave  the  foregoing  answers,  and  that  said 
answers  were  reduced  to  writing  in  my  presence,  and  then  care- 
fully read  by  me  to  the  deponent,  and  then  by  him  subscribed  in 
my  presence. 

In  testimony  whereof,  I  have  hereunto  set  my  hand  and  seal  this 

day  of  . ,  A.  D.  18 

,  Commissioner. 


PENNSYLVANIA. 

The  depositions  of  witnesses  are  allowed  to  be  taken  out  of  the 
State  under  a  commission,  and  according  to  such  rules  as  the  Courts 
may  prescribe.  The  commission  must  be  executed  by  the  commis- 
sioner named  therein.  A  reasonable  notice  should  be  given  of  the 
time  and  place  of  meeting  to  the  agent  who  may  attend  the  exe- 
cution of  the  commission;  that  he  may  collect  the  witnesses.  The 
witness  should  be  examined  on  oath  or  affirmation  in  the  establish- 
ed form  of  the  place,  if  the  same  be  binding  on  his  conscience,  to 
make  true  answers  to  all  such  questions  as  shall  be  asked,  upon  the 
interrogatories  annexed  to  the  commission,  without  favor  or  affec- 
tion to  either  party,  and  therein  to  speak  the  truth,  the  whole 
truth,  and  nothing  but  the  truth.  When  the  witness  finishes  his 
deposition  it  should  be  subscribed  with  his  name  or  mark,  and  the 
commissioners  should  subscribe  their  names  opposite,  for  the  pur- 
pose of  identifying  it,  and  at  the  foot  of  every  page  of  testimony. 
Exhibits  produced  shall  be  verified  by  the  signature  of  the  witness, 
and  certified  by  the  commissioners.  When  an  adjournment  is 
necessary,  the  same  shall  be  noted,  and  the  reasons  therefor. 
When  all  is  completed,  the  following  indorsement  is  made  on  the 
commission :  "  The  execution  of  this  commission  appears  in  a  cer- 
tain schedule  hereunto  annexed  " ;  the  commissioners  sign  their 
names  thereto,  and  also  write  their  names  across  or  beside  the 
seals. 


ss. 


DEPOSITIONS.  253 

PENNSYLVANIA— CONTINUED. 
138.  Form  of  caption  and  certificate. 

Depositions  of  witnesses  produced,  sworn,  [or  affirmed]  and  ex- 
amined on  the day  of ,  in  the  year  of  our  Lord  18 , 

at  the  office  of ,  by  virtue  of  a  commission  issuing  from  the 

Court  of ,  for County,  State  of  Pennsylvania,  to  him  di- 
rected for  the  examination  of  witnesses  in  a  certain  cause  depending 
in  said  Court,  wherein  John  Doe  is  plaintiff  and  Ri  chard  Roe  is 
defendant. 

A  B,  of  the ,  aged years  or  thereabouts,  being  produced, 

sworn,  [or  affirmed]  and  examined  on  behalf  of  the  plaintiff,  [or 
defendant]  deposeth  as  follows  :  To  the  first  interrogatory  on  the 
part  of  the  plaintiff  [or  defendant]  he  answers  as  follows  : 

Certificate. 

STATE  OP  PENNSYLVANIA, 
County  of  , 

I, ,  do  hereby  certify  that  the  said  witness, ,  prior  to  the 

taking  of  such  depositions  on  the  said  day  of  A.  D. 

18 ,  was  by  me  duly  sworn  to  testify  the  truth  in  relation  to 

the  matter  in  controversy,  in  the  suit  befoi-e  mentioned  in  the  cap- 
tion to  this  deposition,  and  in  the  inclosed  commission,  so  far  as  he 
might  be  interrogated  in  relation  thereto,  and  the  said  deposition 

was  on  the day  of  ,  A.  D.  18 ,  in  the  ,  sworn  to, 

taken  and  reduced  to  writing,  and  signed  by  said  witness  in  my 
presence. 

Given  under  my  hand  and  seal  at ,  this day  of , 

A.  D.  18 .  ,  Commissioner. 


RHODE    ISLAND. 

Any  justice  of  the  Supreme  Court,  justice  of  the  peace,  or  notary 
public  may  take  the  deposition  of  any  witness  to  be  used  in  the 
trial  of  any  civil  action  in  which  he  is  not  interested,  nor  of  counsel, 
nor  the  attorney  of  either  party.  Every  person  before  deposing 
shall  be  sworn  to  testify  the  truth,  the  whole  truth,  and  nothing 
but  the  truth.  He  shall  subscribe  the  testimony  by  him  given  after 
the  same  shall  be  reduced  to  writing,  which  shall  be  done  only  by 
the  officer,  or  by  the  deponent  in  his  presence.  Rev.  Stat.  of  1872, 
p.  471. 

Depositions  taken  without  the  State  shall  be  taken  with  the  for- 
malities required  by  the  law  of  the  State  or  country  in  which  the 
same  shall  have  been  taken,  or  before  some  commissioner  appointed 
by  the  governor,  or  by  some  judge,  chancellor,  or  other  civil  mag- 
istrate of  such  State  or  country. 


254  DEPOSITIONS. 

RHODE  ISLAND— CONTINUED. 
139.  (  Form  of  certificate. 

STATE  OF  RHODE  ISLAND,  ) 
County  of  ,  |  8f 

Be  it  remembered,  that  in ,  on  the day  of  ,  A.  D. 

18 ,  personally  appeared  before  me,  at  ,  A  B,  who,  being 

by  me  first  carefully  examined,  cautioned,  and  sworn  to  testify  the 
truth,  the  whole  truth,  -and  nothing  but  the  truth,  gave  the  foregoing 
deposition,  which  was  by  me  reduced  to  writing  in  his  presence,  [or 
by  him  reduced  to  writing  in  my  presence]  and  by  him  signed  in 
my  presence. 

Taken  at  the  request  of  ,  [by  virtue  of  annexed  commis- 
sion, as  the  case  may  be]  to  be  used  in  the  trial  of  an  action  pend- 
ing in  the  Court  of ,  to  be  holden  in ,  within  and  for  the 

county  of ,  in  the  State  of  Rhode  Island,  on  the  day  of 

,  A.  D.  18 . 

The  adverse  party  was  duly  notified,  as  appears  by  the  return  of 
the  notification  thereto  annexed,  and  was  [or  was  not]  present. 

,  Commissioner. 

Fees,  forty  cents  each  hour  necessarily  employed ;  thirty  cents 
each  page. 


SOUTH  CAROLINA. 

Notaries  public  and  clerks  of  Courts  may  take  depositions 
within  the  State.  Rev.  Stat.  of  1873,  pp.  113,  180. 

Out  of  the  State  the  deposition  of  a  witness  is  taken  on  a  com- 
mission directed  to  commissioners  specially  named.  Two  com- 
missioners are  required  to  execute  the  commission,  who  must 
themselves  first  take  the  following  oath  :  "  You  shall,  according  to 
the  best  of  your  knowledge,  truly,  faithfully,  and  without  partial- 
ity to  any  or  either  of  the.  parties  in  this  cause,  take  the  examina- 
tion and  deposition  of  all  and  every  witness  and  witnesses,  produced 
and  examined  by  virtue  of  the  commission  hereunto  annexed,  u,  on 
the  interrogatories  now  produced  and  left  with  you.  And  you 
shall  not  publish,  disclose,  or  make  known  to  any  person  or  persons 
whatsoever,  except  the  clerk  or  clerks  by  you  employed,  and  sworn 
to  secrecy  in  the  execution  of  this  commission,  the  contents  of  all 
or  any  of  the  depositions  of  witnesses,  or  any  of  them,  to  bo  taken 
by  you  and  the  other  commissioners  in  the  commission  named,  or 
any  of  them,  by  virtue  of  the  said  commission,  until  publication 
shall  pass  by  rule  or  order  of  the  Court  of :  So  help  you  God." 

When  the  commissioners  begin,  they  will  put  the  first  interroga- 
tory to  the  first  witness  produced,  and  set  down  his  answers 
thereto  on  a  sheet  entitled,  "  Depositions  of  witnesses  sworn  and 
examined,"  etc.  When  finished,  they  will  fix  and  seal  the  sever.;! 
sheets  together,  and  set  their  hands  and  seals  at  the  bottom  of  the 
whole,  and  their  hands  to  each  sheet,  leaving  the  covering  sheet  on 
the  outside  of  the  whole.  They  will  then  inclose  the  whole,  com- 


DEPOSITIONS.  255 

SOUTH  CAROLINA— CONTINUED. 

mission  and  all,  in  a  large  paper,  well  sealed  up,  with  their  seals  and 
names  affixed  thereto ;  and,  having  first  indorsed  the  packet  on  a 
corner  with  the  names  of  the  parties,  direct  the  same  as  pointed 
out  in  the  commission. 


TENNESSEE. 

If  taken  in  the  State,  depositions  may  be  taken  before  a  justice 
of  the  peace,  any  clerk  of  the  Court,  mayor  of  a  town  or  city,  and 
notary  public,  or,  if  taken  out  of  the  State,  by  a  commissioner  of 
deeds,  appointed  by  the  governor  of  the  State  to  reside  therein, 
judge  of  a  Court,  or  any  one  appointed  on  commission.  When 
taken  by  a  notary  or  commissioner,  their  official  seals  must  be  at- 
tached to  the  certificate.  The  deponent,  or  officer  taking  the  dep- 
osition, must  write  the  testimony,  or  some  one  agreed  upon  by  the 
parties. 

140.  Form  of  caption  and  certificate. 

JOHN  DOE  vs.  RICHARD  ROE. 

In  the Court  of  County,  State  of  Tennessee  [here  in- 
sert the  names  of  plaintiffs  or  defendants,  or  their  agents  or  attor- 
neys present]. 

Depositions  of  A  B  and  C  D,  witnesses  for  the  plaintiff  [or  de- 
fendant] in  the  above  cause,  taken  upon  notice  [or  interrogatories] 
on  the day  of  ,  A.  D.  18 ,  at  ,  in  the  presence  of 

The  witness,  A  B,  aged ,  being  sworn,  deposed  as  follows  : 

Certificate. 

I, ,  do  certify  that  the  foregoing  depositions  were  taken  be- 
fore me,  as  stated  in  the  caption,  and  reduced  to  writing  by  me  [or 
the  witnesses].  And  I  further  certify  that  I  am  not  interested  in 
the  cause,  nor  of  kin  or  counsel  to  either  of  the  parties  ;  and  that 

I  sealed  them  up  and  delivered  them  to ,  [or  put  them  in  the 

postoffice,  or  delivered  them  to  the  agent  of  the express  com- 
pany, at ,  to  be  forwarded  by  express,  as  the  case  may  be] 

without  their  being  out  of  my  possession  or  altered  after  they  were 
taken. 

Given  under  my  hand  and  seal,  at ,  this day  of  , 

A.  D.  18 .  ,  Commissioner. 


TEXAS. 

When  a  commission  is  issued  to  take  the  testimony  of  a  witness 
out  of  the  State,  in  a  criminal  suit,  it  may  be  directed  to  a  judge 


256  DEPOSITIONS. 

TEXAS— CONTINUED. 

or  chancellor  of  a  Superior  Court  of  Law  or  Equity,  or  to  a  com- 
missioner residing  in  the  State.  Paschal's  Dig.  Art.  3233. 

In  a  civil  suit,  the  deposition  of  a  witness  out  of  the  State  may 
be  taken  on  commission  directed  to  any  public  officer  of  any  town, 
city,  district,  county,  or  State,  or  other  political  division  of  any 
government  beyond  the  limits  of  this  State.  Paschal's  Dig.  Art. 
3730. 

In  every  case  where  depositions  are  taken  under  commission  in 
criminal  actions,  the  officer  or  officers  taking  the  same  shall  certify 
that  the  person  deposing  is  the  identical  person  named  in  the  com- 
mission ;  or,  if  they  cannot  certify  to  the  identity  of  the  witness, 
there  shall  be  an  affidavit  of  some  person  attached  to  the  deposition, 
proving  the  identity,  and  the  officer  or  officers  shall  certify  that  the 
person  making  the  affidavit  is  known  to  them,  and  is  worthy  of 
credit.  The  official  seal  of  each  officer  shall  be  attached  to  the  cer- 
tificate. Arts.  3239,  3240. 

In  a  civil  cause,  the  officer  to  whom  any  commission  is  directed, 
upon  the  appearance  of  the  witness  before  him,  shall  take  his 
answer  to  the  interrogatories,  which  shall  be  reduced  to  writing, 
and  shall  be  signed  and  sworn  to  by  the  witness ;  when  the  officer 
taking  the  same  shall  certify,  under  his  hand  and  seal  of  office,  that 
the  answers  were  signed  and  sworn  to  by  the  witness  before  him, 
and  seal  them  up  in  an  envelope  with  the  interrogatories  and  the 
commission,  with  his  name  across  the  seal,  indorse  the  names  of  the 
parties  to  the  suit,  and  the  names  of  the  witnesses,  and  direct  the 
package  to  the  clerk  of  the  Court.  Art.  3730. 

If  sent  by  mail,  the  postmaster  must  indoi'se  on  the  envelope 
that  he  received  it  from  the  hands  of  the  commissioner.  If  sent 
by  private  conveyance,  the  person  who  receives  the  same  must 
make  oath  that  it  has  not  been  out  of  his  possession,  and  has  un- 
dergone no  alterations. 


141.  Form  of  caption  and  certificate. 

STATE  OF  TEXAS,  \ 

County  of ,     ) 

In  accordance  with  a  commission  issued  from  the  office  of  the 

clerk  of  the Court  of County,  in  the  State  of  Texas,  in 

the  case  of  John  Doe  v.  Richard  Roe,  in  said  Court  pending,  to 
take  the  deposition  of  A  B,  a  witness  therein  named,  of  lawful  age, 

whom  I  caused  to  come  before  me  at  my  office,  in  the ,  who, 

being  by  me  duly  sworn  to  make  true  answers  to  all  such  interrog- 
atories as  should  be  propounded  to  him,  answered  as  follows : 

When  the  deposition  is  completed,  and  the  witness  has  signed 
his  name  thereto,  then  add  the  following : 


DEPOSITIONS.  257 

TEXAS— CONTINUED. 

Certificate. 
STATE  OF  TEXAS,) 
County  of ,      ) 

I, ,  do  hereby  certify  that  the  foregoing  answers  were  sworn 

to  and  subscribed  by  the  witness,  A  B,  before  me. 

Given  under  my  hand  and  seal  this  •  day  of  ,  A.  D. 

18 .  ,  Commissioner. 


VERMONT. 

A  commission  may  be  issued  to  such  person  as  the  judge  may 
appoint  to  take  the  testimony  of  any  person  residing  or  being 
without  the  State ;  and  such  testimony  shall  be  taken  either  upon 
interrogatories,  settled  upon  the  order  of  such  judge,  or  upon  oral 
examination,  as  such  judge  shall  direct.  No  agent,  attorney,  or 
person  interested  in  any  cause,  shall  write  or  draw  up  the  deposi- 
tion of  any  witness,  to  be  used  in  such  cause ;  and  any  deposition 
so  written  or  drawn  up,  or  returned  to  the  clerk  of  the  Court  un- 
sealed, or  with  the  seal  broken,  shall  be  rejected  by  the  Court. 


142.  Form  of  caption  and  certificate. 

STATE  OF  VERMONT,") 

County  of  ,          j  ' k 

At  ,  in  said  county  of  ,  this  •  day  of  -,  A.  D. 

18 ,  personally  appeared  A  B,  and  made  oath  that  the  fore- 
going deposition,  by  him  subscribed,  contains  the  whole  truth,  and 
nothing  but  the  truth.  Before  me, ,  Commissioner. 

The  above  deposition  was  taken  at  the  request  of ,  to  be  used 

in  a  cause  to  be  heard  and  tried  by ,  \Jiere  insert  the  style  of 

the  Court,  or  name  of  the  judge  by  whom  the  case  is  to  be  tried,  and 
the  time  and  place  of  session]  in  which  cause  John  Doe  is  plaintiff 
and  Richard  Roe  is  defendant.  The  deponent  [state  the  reason  of 
taking  the  deposition]  is  the  cause  of  the  taking  this  deposition, 
and  the  adverse  party  was  notified  and  did  [or  did  not]  attend. 

,  Commissioner. 


VIRGINIA. 

In  the  State,  a  deposition  may  be  taken  without  commission  by  a 
justice,  or  notary  public,  or  by  a  commissioner  in  chancery ;  and  if 
certified  under  his  hand,  may  be  received  without  proof  of  the 
signature  to  such  certificate.  Out  of  the  State,  a  deposition  may  be 
taken  on  a  commission  directed  to  any  commissioner  appointed 
by  the  governor  of  this  State,  or  to  any  justice  or  notary  public  of 

NOTARIES — 17. 


258  DEPOSITIONS. 

VIRGINIA— CONTINUED. 

the  State  wherein  the  witness  may  be.  Any  person  or  persons  to 
whom  a  commission  is  so  directed,  may  administer  an  oath  to  the 
witness,  and  take  and  certify  the  deposition  with  his  official  seal 
annexed ;  if  he  have  none,  then  the  genuineness  of  his  signature 
shall  be  authenticated  by  some  officer  of  the  same  State  or  country 
under  his  official  seal,  unless  the  deposition  is  taken  by  a  justice 
out  of  this  State,  but  in  the  United  States,  in  which  case  his  certifi- 
cate shall  be  received  without  any  seal  annexed,  or  other  authenti- 
cation of  his  signature.  Code  of  1860,  p.  726. 


143.  Form  of  caption  and  certificate. 

STATE  OP  TEXAS,  ) 

County  of  ,     j  8S< 

I, ,  do  hereby  certify  that  on  the day  of  ,  18 , 

at  my  office,  between  the  hours  of  and ,  A  B  and  C  D, 

witnesses  on  behalf  of  the  plaintiff,  [or  defendant]  in  a  suit  depend- 
ing in  the Court  of ,  in  the  State  of  Virginia,  came  before 

me,  and  the  said ,  A  B,  having  been  first  duly  sworn,  deposeth 

and  saith  as  follows: 


And  further,  this  deponent  saith  not. 

And  the  said  C  B,  having  been  first  duly  sworn,  deposeth  and 
saith  as  follows : 

And  further,  this  deponent  saith  not.  . 

Which  examination  being  completed,  I  now  send  and  certify  the 

same  unto  the  said Court  of  the  county  of  ,  in  the  State 

of  Virginia. 

In  testimony  whereof,  I  hereunto  subscribe  my  name  and  affix 

my  seal  on  the day  of  ,  18 ,  at  the  place  and  between 

the  hours  specified.  -. »  Commissioner. 

The  depositions  are  then  to  be  inclosed  and  the  envelope  sealed 

and  directed  as  follows :  To  the  Clerk  of  the Court  of  

County,  Virginia. 


WASHINGTON    TERRITORY. 

Either  party  may  have  the  deposition  of  a  witness  taken  in  the 
Territory  before  any  judge  of  the  District  Court,  justice  of  the 
peace,  clerk  of  the  Supreme  or  District  Courts,  mayor  of  a  city, 
or  notary  public.  The  deposition  shall  be  written  by  the  officer 
taking  the  same,  or  by  the  witness,  or  by  some  disinterested  person, 
in  the  presence  and  under  the  direction  of  such  officer.  When 
completed,  it  shall  be  carefully  read. to  or  by  the  witness,  corrected 
if  desired,  and  subscribed  by  him,  and  certified  by  the  officer  sub- 
stantially as  follows : 


DEPOSITIONS.  259 

WASHINGTON  TERRITORY— CONTINUED. 
144.  Certificate. 

TERRITORY  OF  WASHINGTON, 
County  of , 

I,  A  B,  justice  of  the  peace  in  and  for  said  county,  [or  judge, 
clerk,  etc.,  as  the  case  may  be]  do  hereby  certify  that  the  above 
deposition  was  taken  before  me,  and  reduced  to  writing  by  myself, 
[or  witness,  as  the  case  may  be]  at ,  in  said  county,  on  the 

—  day  of  ,  18 ,  at o'clock,  in  pursuance  of  notice 

hereunto  annexed ;  that  the  above-named  witness,  before  examina- 
tion, was  sworn  [or  affirmed]  to  testify  the  truth,  the  whole  truth, 
and  nothing  but  the  truth ;  and  that  the  said  deposition  was  care- 
fully read  to  [or  by]  said  witness,  and  then  subscribed  by  him. 

Dated  at ,  the day  of  ,  18 . 

A  B,  Justice  of  the  Peace. 

Depositions  may  be  taken  out  of  the  Territory  on  a  commission 
issued  to  a  person  or  persons,  not  exceeding  three,  agreed  upon  by 
the  parties  ;  or,  if  they  do  not  agree,  to  any  judge,  justice  of  the 
peace,  notary  public,  or  other  competent  person  selected  by  the 
Court. 

The  commission  shall  authorize  the  commissioner  or  commission- 
ers to  administer  an  oath  to  the  witness,  and  to  take  his  deposition  in 
answer  to  the  several  interrogatories  annexed,  or,  when  the  exam- 
ination is  to  be  without  interrogatories,  in  respect  to  the  question 
in  dispute,  to  certify  the  deposition  to  the  Court,  and  to  direct  to 
the  clerk  of  the  Court,  or  such  other  person  designated  or  agreed 
upon,  and  forward  to  him  by  mail  or  other  usual  channel  of  convey- 
ance. Laws  of  Washington,  1854-7,  p.  193. 

No  form  is  prescribed ;  that  used  for  depositions  in  the  State  will 
suffice. 


WEST  VIRGINIA. 

The  same  form  and  rules  as  were  given  for  Virginia  are  adapted 
also  to  this  State. 


WISCONSIN. 

In  the  State,  the  deposition  of  a  witness  may  be  taken  before  any 
justice  of  the  peace,  or  other  person  authorized  by  law  to  take 
depositions.  2  Taylor's  Stat.  1587. 

The  deponent  shall  be  sworn  to  testify  the  truth,  the  whole 
truth,  and  nothing  but  the  truth,  relating  to  the  cause  for  which 
the  deposition  is  taken,  and  he  shall  then  be  examined  by  the  par- 
ties, if  they  think  fit,  or  by  the  justice,  and  his  testimony  shall  be 
taken  in  writing:  p.  1588.  The  deposition  of  any  witness  without 
the  State  may  be  taken  under  a  commission,  issued  to  one  or  more 


260  DEPOSITIONS. 

WISCONSIN— COSTTINTJED. 

competent  persons,  in  any  State  or  country,  by  the  Court  in  which 
the  cause  is  pending. 

The  statute  prescribes  the  following  certificate  in  the  State  • 

145.  Certificate. 
STATE  OF  WISCONSIN,  "> 
County,                 f  Si 

I,  A  B,  justice  of  the  peace  in  and  for  said  county,  do  hereby  cer- 
tify that  the  above  deposition  was  taken  before  me,  at  my  office  in 

the  town  of ,  in  said  county,  on  the day  of ,  1 8 , 

at o'clock ;  that  it  was  taken  at  the  request  of  the  plaintiff,  [or 

defendant]  upon  verbal  [or  written]  interrogatories ;  that  it  was  re- 
duced to  writing  by  myself  [or  by  deponent,  or  by ,  a  disinter- 
ested person,  in  my  presence  and  under  my  direction] ;  that  it  was 
taken  to  be  used  in  an  action  of  A  B  v.  C  D,  now  pending  in  the 

Court,  and  the  reason  for  taking  it  was  [here  state  the  true 

reason] ;  that attended  at  the  taking  of  said  deposition  [or 

that  a  notice,  of  which  the  annexed  is  a  copy,  was  served  upon 

him  on  the day  of ,  18 ] ;  that  said  deponent,  before 

examination,  was  sworn  to  testify  the  truth,  the  whole  truth,  and 
nothing  but  the  truth  relative  to  said  cause,  and  that  said  deposi- 
tion was  carefully  read  to  [or  by]  said  deponent,  and  then  sub- 
scribed by  him.  Dated .  A  B,  Justice  of  the  Peace. 

[2  Taylor's  Stat.  1588.] 

In  the  return  of  a  deposition  taken  on  commission  out  of  the 
State,  the  following  form  is  used: 

Form  of  caption  and  certificate. 

Deposition  of  witness  produced,  sworn,  [or  affirmed]  and  exam- 
ined the  — —  day  of ,  in  the  year  one  thousand  eight  hundred 

and ,  at ,  under  and  by  virtue  of  a  commission  issued  out 

of  the Court  of County,  in  a  certain  cause  therein  depend- 
ing and  at  issue  between  John  Doe,  plaintiff,  and  Richard  Roe,  de- 
fendant, as  follows : 

A  B,  of  ,  aged  years  and  upwards,  being  duly  and 

publicly  sworn,  [or  affirmed]  pursuant  to  the  directions  hereto  an- 
nexed, and  examined  on  the  part  of  the  plaintiff,  doth  depose  and 
say  as  follows,  viz : 

First.     To  the  first  interrogatory,  he  saith,  etc. 

When  the  witness  has  finished,  he  will  subscribe,  and  the  com- 
missioner appends  the  following : 

Certificate. 

Examination  taken,  reduced  to  writing,  and  by  the  witness  sub- 
scribed, this day  of  ,  A.  D.  18 .  Before  me, 

Commissioner. 


DEPOSITIONS.  201 


WYOMING. 

Depositions  may  be  taken  in  this  Territory  before  a  judge  or 
clerk  of  the  Supreme  or  District  Court,  or  before  a  probate  judge, 
justice  of  the  peace,  notary  public,  mayor  or  chief  magistrate  of 
any  city  or  town  corporate,  or  before  a  master  commissioner,  or 
any- person  empowered  by  a  special  commission. 

Depositions  may  be  taken  out  of  the  Territory  by  a  judge,  jus- 
tice, or  chancellor  of  any  Court  of  Record,  a  justice  of  the  peace, 
notary  pxiblic,  mayor  or  chief  magistrate  of  any  city  or  town  cor- 
porate, a  commissioner  appointed  by  the  governor,  or  any  person 
authorized  by  a  special  commission  from  the  Territory.  Comp. 
Laws  of  1876,  pp.  77-8. 

The  deposition  shall  be  written  in  the  presence  of  the  officer  tak- 
ing the  same,  either  by  the  officer,  the  witness,  or  some  disinterested 
person,  and  subscribed  by  the  witness.  The  deposition  shall  be 
sealed  up  and  indorsed  with  the  title  of  the  cause  and  the  name  of 
the  officer  taking  the  same,  and  by  him  addressed  and  transmitted 
to  the  clerk  of  the  Court  where  the  action  or  proceeding  is  pending. 

Officers  herein  authorized  may  authenticate  their  official  charac- 
ter, with  their  own  seals.  If  the  officer  have  no  official  seal,  the 
deposition  if  not  taken  in  the  Territory  shall  be  certified  and 
signed  by  such  officer,  and  shall  be  further  authenticated,  either  by 
parol  proof  adduced  in  Court,  or  by  the  official  certificate  and  seal 
of  any  secretary  or  other  officer  of  State,  keeping  the  great  seal 
thereof,  or  by  the  clerk  of  the  Court,  having  a  seal  attesting  that 
such  judicial  officer  was,  at  the  time  of  taking  the  same,  authorized 
to  take  such  deposition.  But  if  the  deposition  is  taken  under  com- 
mission, this  is  not  necessary. 

The  officer  shall  certify  the  following  facts  :  1.  That  the  witness 
was  first  sworn  to  testify  the  truth,  the  whole  truth,  and  nothing 
but  the  truth.  2.  That  the  deposition  was  reduced  to  writing  by 
some  proper  person,  naming  him.  3.  That  the  deposition  was 
written  and  subscribed  in  the  presence  of  the  officer  certifying 
thereto.  4.  That  the  deposition  was  taken  at  the  time  and  place 
specified  in  the  notice.  Comp.  Laws  of  1876,  p.  79. 

These  are  substantially  the  same  as  required  in  the  Ohio  statute, 
and  the  form  for  that  State  may  be  used. 


IN  UNITED   STATES  COURTS. 

The  United  States  Revised  Statutes,  Sec.  863,  provide :  "  The 
testimony  of  any  witness  may  be  taken  in  any  civil  cause,  depend- 
ing in  a  District  or  Circuit  Court,  by  deposition  de  bene  esse,  when 
the  witness  lives  at  a  greater  distance  from  the  place  of  trial  than 
one  hundred  miles,  or  is  bound  on  a  voyage  to  sea,  or  is  about  to 
go  out  of  the  United  States,  or  out  of  the  district  in  which  the  case 
is  to  be  tried,  and  to  a  greater  distance  than  one  hundred  miles  from 


262  DEPOSITIONS. 

IN  UNITED  STATES  COURTS— CONTINUED. 

the  place  of  trial,  or  Avhen  he  is  ancient  or  infirm.  The  deposition 
may  be  taken  before  any  judge  of  any  Court  of  the  United  States, 
or  any  commissioner  of  a  Circuit  Court,  or  any  chancellor,  justice, 
or  judge  of  a  Supreme  or  Superior  Court,  mayor  or  chief  magis- 
trate of  a  city,  judge  of  a  County  Court  or  Court  of  Common 
Pleas  of  any  of  the  United  States,  or  any  notary  public,  not  being 
of  counsel  or  attorney  to  either  of  the  parties,  nor  interested  in  the 
event  of  the  cause.  Reasonable  notice  must  first  be  given  in 
writing,  by  the  party  or  his  attorney  proposing  to  take  such  deposi- 
tion, to  the  opposite  party  or  his  attorney  of  record,  as  either  may 
be  nearest,  which  notice  shall  state  the  name  of  the  witness,  and 
the  time  and  place  of  the  taking  of  his  deposition ;  and  in  all  cases 
in  rem,  the  person  having  the  agency  or  possession  of  the  property 
at  the  time  of  seizure  shall  be  deemed  the  adverse  party,  until  a 
claim  shall  have  been  put  in ;  and  whenever,  by  reason  of  the  ab- 
sence from  the  district  and  want  of  an  attorney  of  record,  or  other 
reason,  the  giving  of  the  notice  herein  required  shall  be  impracti- 
cable, it  shall  be  lawful  to  take  such  depositions  as  there  shall  be 
urgent  necessity  for  taking,  upon  such  notice  as  any  judge  author- 
ized to  hold  Courts  in  such  circuit  or  district  shall  think  reasonable 
and  direct.  Any  person  may  be  compelled  to  appear  and  depose 
as  provided  by  this  section,  in  the  same  manner  as  witnesses  may 
be  compelled  to  appear  and  testify  in  Court. 


146.  Certificate  of  officer. 

{Title  of  suit.]  Deposition  of  ,  for  plaintiff. 

STATE  OF ,  ") 

County  of ,  j  Ki 

I  hereby  certify  that  on  the day  of ,  A.  D.  18 ,  before 

me ,  [giving  name  and  title  in  f till  \  at  my  office, ,  in  the  city 

of ,  between  the  hours'of and ,  was  produced  to,  and 

personally  came  before  me,  E  F,  the  witness  named  in  the  notice 
hereunto  annexed,  to  depose  in  a  civil  cause  depending  in  the  [Cir- 
cuit Court  of  the  United  States  for  the  district  of  ], 

wherein  A  B  is  plaintiff  and  C  D  defendant;  and  that  I  was  then 

and   there   attended  by ,  Esq.,  counsel   for   plaintiff,  and   by 

,  Esq.,  counsel  for  defendant.  And  the  said  E  F,  being  of  law- 
ful age  and  sound  mind,  and  being  by  me  first  duly  examined,  cau- 
tioned, and  sworn  to  tell  the  truth,  the  whole  truth,  and  nothing 
but  the  truth  touching  his  knowledge  of  the  matters  and  things  in 
controversy  in  said  civil  cause,  deposed  and  said  as  follows : 

\Sere  follows  the  testimony^  which  should  be  by  question  and 
answer  as  far  as  practicable,  so  as  to  indicate  whatever  objections 
may  be  offered^ 

I  further  certify  that  the  foregoing  deposition  of  E  F  was  then 
and  there  reduced  to  writing  by  me,  in  the  presence  of  the  depon- 
ent, and  to  him,  by  me,  carefully  read  over,  and  by  him  subscribed 


DEPOSITIONS.  263 

IN  UNITED  STATES  COURTS— CONTINUED. 

in  my  presence,  after  being  so  reduced  to  writing,  and  that  the 
reason  for  taking  such  deposition  was,  and  is,  that  the  deponent, 

the  witness  E  F,  resides  at  ,  more  than  one  hundred  miles 

from ,  where  said  civil  cause  is  appointed  to  be  tried  [or  what- 
ever the  reason  as  pointed  out  in  the  statute]. 

I  further  certify  that  I  am  not  of  counsel  or  attorney  to  either 
of  the  parties  to  this  suit,  nor  interested  in  the  event  of  this  cause ; 
and  that,  it  being  impracticable  for  me  to  deliver  said  deposition 
with  my  own  hand  into  the  Court  for  which  it  was  taken,  I  re- 
tained the  same  for  the  purpose  of  being  sealed  up  by  me,  and 
speedily  and  safely  transmitted  by  [mail]  to  the  said  Court  for 
which  it  was  taken,  and  to  remain  under  my  seal  entire  until 

opened;  that  the  fee  for  taking  the  said  deposition,  $ ,  has  been 

paid  to  me  by ,  and  that  the  same  is  just  and  reasonable  for 

the  service. 

Given  under  my  hand  and  seal,  at  ,  this day  of  , 

A.  D.  18 .  [/Signature  and  title.] 

[Seal.] 

The  title  and  number  of  the  cause,  and  the  Court  wherein  de- 
pending, should  be  indorsed  on  the  back  of  the  envelope,  and  it 
should  be  directed  to  the  clerk  of  the  Court  where  the  case  is  pend- 
ing. The  commissioner,  or  officer  taking  the  deposition,  should 
write  his  name  across  the  seal  or  wafer,  and  take  the  post- 
master's [or  his  clerk's]  receipt  on  the  back. 


Forms  of  Protest  and  Notice. 


147.  Protest  for  non-acceptance,  English  form. 

On  this day  of ,  one  thousand  eight  hundred  and , 

I,  It  B,  a  notary  public,  by  lawful  authority  and  sworn,  dwelling 

in  L ,  in  the  county  of  L and  United  Kingdom  of  Great 

Britain  and  Ireland,  at  the  request  of  C  D,  the  holder,  [or  bearer, 
as  the  case  may  be]  did  exhibit  the  original  bill  of  exchange, 
whereof  a  true  copy  is  on  the  other  side  written,  to  a  clerk  in  the 

counting-house  [or  office]  of  Messi-s.  Brown  &  Co.,  No. , 

Street,  L ,  the  persons  upon  whom  the  same  is  drawn,  and  de- 
manded acceptance  thereof,  when  I  received  for  answer  that  the 
said  bill  would  not  be  accepted. 

W  heref ore,  I,  the  said  notary,  at  the  request  aforesaid,  have  pro- 
tested, and  by  these  presents  do  protest  against  the  drawers  and 
indorsers  of  the  said  bill  and  all  others  concerned  for  all  exchange, 
re-exchange,  and  all  costs,  damages,  and  interest,  present  and  to 
come,  for  want  of  acceptance  of  the  said  bill. 

Which  I  attest.  It  B,  Notary  Public. 

[It  will  be  observed  that  no  certificate  is  made  as  to  notice  given, 
because,  according  to  the  common  law,  the  notary  is  not  obliged  to 
give  notice  to  indorsers,  In  American  protests,  there  is  generally 
embodied  a  certificate  showing  to  whom  notices  were  sent,  and  the 
manner  of  sending  the  same.] 


148.  Protest  for  non-payment,  English  form. 

On  this day  of  ,  [as  in  the  preceding  form,  but  insert 

after  "  holder  "]  did  take  [or  exhibit]  the  original  bill  of  exchange, 
whereof  a  true  copy  is  on  the  other  side  written,  at  the  counting- 
house  [or  office]  of  Messrs.  Brown  &  Co.,  No. , Street, 

L ,  where  the  said  bill  is  made  payable  by  the  acceptance 

thereof,  in  order  to  present  the  same  and  demand  payment  thereof, 
and  the  door  was  found  fastened,  and  the  place  shut  up,  and  there 
was  no  person  there  to  give  an  answer  [or  received  for  answer  that 
the  same  would  not  be  paid]. 

Wherefore,  I,  the  said  notary,  at  the  request  aforesaid,  have  pro- 
tested, and  by  these  presents  do  protest,  against  the  drawers  and 
indorsers  of  the  said  bill,  and  all  others  concerned,  for  all  exchange, 

[264] 


PROTEST   AND   NOTICE.  265 

re-exchange,  and  all  costs,  damages,  and  interest,  present  and  to 
come,  for  want  of  payment  of  the  said  bill. 

Which  I  attest.  R  B,  Notary  Public. 


149.          Form  in  use  in  New  York,  for  non-acceptance. 

UNITED  STATES  OF  AMERICA,  } 
State  of  New  York,  >•  ss. 

County  of  New  York,  } 

On  the day  of ,  in  the  year  of  our  Lord  one  thousand 

eight  hundred  and ,  at  the  request  of  M  N,  the  holder,  I,  Hol- 
land Smith,  a  notary  public  of  the  State  of  New  York,  duly  com- 
missioned and  sworn,  dwelling  in  the  city  of  New  York,  in  the 
county  of  New  York,  did  present  the  bill  of  exchange  hereunto 

annexed,  for dollars,  to  Y  Z,  at  his  place  of  business,  No. , 

-  Street,  in  the  city  of  New  York,  and  demand  acceptance 
thereof,  which  was  refused. 

Whereupon,  I,  the  said  notary,  at  the  request  aforesaid,  did  pro- 
test, and  by  these  presents  do  publicly  and  solemnly  protest,  as 
well  as  against  the  drawer  and  indorsers  of  the  said  bill  of  ex- 
change, as  against  all  others  whom  it  doth  or  may  concern,  for 
exchange,  re-exchange,  and  all  costs,  damages,  and  interest,  already 
incurred  and  hereafter  to  be  incurred,  for  want  of  acceptance  of 
the  said  bill. 

And  I  further  certify  that  on  the day  of ,  18 ,  due 

notice  of  the  presentment  and  protest  of  the  said  bill  of  exchange 
was  given  by  me  to  the  maker  and  indorsers  of  the  said  bill  of  ex- 
change, by  depositing  notices  in  the  pos1>office,  at  the  city  of  New 
York,  (prepaying  the  postage  thereon)  directed  as  follows : 

Notice  for ,  [insert  name']  directed  to [insert  residence]. 

Notice  for  ,  directed  to  .    Notice  for  ,  directed  to 


Each  of  the  above  named  places  being  the  reputed  place  of  res- 
idence of  the  person  to  whom  notice  was  so  addressed,  and  the 
post-office  nearest  thereto. 

In  testimony  whereof,  I  have  hereunto  set  my  hand  and  affixed 

my  seal  of  office,  at  the  city  of  New  York,  ,  this day  of 

,  187 .  HOLLAND  SMITH, 

[Notarial  seal.]  Notary  Public. 

150.  For  non-payment. 

UNITED  STATES  OF  AMERICA, 
State  of  New  York, 
County  of  New  York, 

On  the day  of ,  in  the  year  of  our  Lord  one  thousand 

eight  hundred  and ,  at  the  request  of  M  N,  the  holder,  I,  Hol- 
land Smith,  a  notary  public  of  the  State  of  New  York,  duly  com- 
missioned and  sworn,  dwelling  in  the  city  of  New  York,  in  the 
county  of  New  York,  did  present  the  note  hereunto  annexed,  for 


266  PROTEST  AND   NOTICE. 

dollars,  at  the bank,  in  the  city  of  New  York,  the  place 

where  the  same  was  payable,  [or at  the  office  of ]  and  demanded 

payment  thereof,  which  was  refused  [or  give  whatever  answer  may 
be  made  /  or  if  no  one  was  there,  state  the  fact]. 

Whereupon,  I,  the  said  notary,  at  the  request  aforesaid,  did  pro- 
test, and  by  these  presents  do  publicly  and  solemnly  protest,  as 
well  as  against  the  maker  and  indorsers  of  the  said  note,  as  against 
all  others  whom  it  doth  or  may  concern,  for  exchange,  re-exchange, 
and  all  costs,  damages,  and  interest  already  incurred  for  want  of 
payment  of  the  said  note. 

And  I  further  certify  that  on  the day  of ,  18 ,  due 

notice  of  the  presentment  and  protest  of  the  said  note  was  given 
by  me  to  the  maker  and  indorsers  of  the  said  note,  by  depositing 
notices  in  the  post-office  at  the  city  of  New  York,  (prepaying  the 
postage  thereon)  directed  as  follows : 

Notice  for  ,  [insert  name~\  directed  to [insert  place"]. 

Notice  for  ,  directed  to  .  Notice  for  ,  directed  to 


Each  of  the  aboved  named  places  being  the  reputed  place  of  res- 
idence of  the  person  to  whom  notice  was  so  addressed,  and  the 
post-office  nearest  thereto. 

In  testimony  whereof,  I  have  hereunto  set  my  hand  and  affixed 

my  seal  of  office,  at  the  city  of  New  York,  this day  of  -  — , 

18 .  HOLLAND  SMITH, 

[Notarial  seal.]  Notary  Public. 

151.  Form  in  use  in  California. 

UNITED  STATES  OP  AMERICA,         ) 
State  of  California,  >  ss 

City  and  County  of  San  Francisco,  ) 

By  this  public  instrument  of  protest,  be  it  known,  that  on  this 
day  of ,  in  the  year  of  our  Lord  one  thousand  eight  hund- 
red and ,  at  the  request  of  M  N,  the  holder  of  the  original 

bill,  [or  note]  whereof  a  true  copy  is  on  the  reverse  hereof  written, 
I,  Holland  Smith,  a  notary*  public  in  and  for  the  city  and  county 
of  San  Francisco,  State  of  California,  aforesaid,  residing  therein, 
duly  commissioned  and  sworn,  did  this  day  present  said  bill  [or 
note]  to  the  acceptor  [or  maker]  personally,  at  San  Francisco,  of 
whom  I  then  and  there  demanded  payment  of  said  bill  [or  note] 
which  was  by  him  refused,  [reason  may  be  stated,  if  any  given] 
[or,  when  it  is  payable  at  a  particular  place,  state]  at  No.  — 

Street,  in  the  city  of  San  Francisco,  the  place  where  said  bill 

was  payable,  and  demanded  payment  thereof,  which  was  refused 
[or  as  the  case  may  be]. 

Whereupon,  I,  the  said  notary,  at  the  request  aforesaid,  did  pro- 
test, and  by  these  presents  do  publicly  and  solemnly  protest,  as 
well  as  against  the  drawer  or  maker  of  the  said  bill,  [or  note]  as 
against  all  others  with  whom  it  doth  or  may  concern,  for  all  ex- 
change or  re-exchange,  damages,  costs,  charges,  and  interests,  suf- 
fered or  to  be  suffered,  for  want  of  payment  [or  acceptance,  as  the 
case  may  be]  of  said  bill  [or  note]. 


PROTEST   AND    NOTICE.  267 

Thus  done  and  protested  at  said  city  and  county  of  San  Fran- 
cisco,  on  the  day  and  year  aforesaid. 

In  testimony  whereof,  I  grant  these  presents,  under  my  signature, 
and  the  impress  of  my  seal  of  office,  at  the  city  and  county  of  San 
Francisco,  on  the  day  and  year  first  above  written. 

[Notarial  seal.]  HOLLAND  SMITH, 

Notary  Public. 

[Then  follows  on  the  reverse  side,  a  copy  of  the  instrument,  ver- 
batim et  literatim,  with  the  indorsements  thereon,  and  the  notary 
appends  the  following  certificate  :] 

I,  the  undersigned  notary,  do  hereby  certify  that  the  parties  to 
the  bill,  [or  note]  whereof  a  true  copy  is  above  written,  have  been 
duly  notified  of  the  protest  thereof  by  letters  to  them  by  me  writ- 
ten, and  addressed,  dated  on  the  day  of  the  said  protest,  and  served 
on  them  respectively  in  the  manner  following,  viz :  On  A  B,  the 

indorser,  said  letter  being  by  me  delivered  to ,  at  the  place  of 

business  of in  said  city  and  county  of  San  Francisco,  on  the 

forenoon  of  the day  of ,  18 — - — . 

In  faith  whereof,  I  have  hereunto  signed  my  name,  at  the  city 

and  county  of  San  Francisco,  this day  of  ,  one  thousand 

eight  hundred  and .  HOLLAND  SMITH, 

\_Notarial  seal.]  Notary  Public. 

[By  the  Civil  Code  of  California,  Sec.  3144,  it  is  provided  that 
notice  may  be  given  in  three  ways :  1.  By  delivering  it  to  the  party 
to  be  charged  personally,  at  any  place ;  or,  2.  By  delivering  it  to 
some  person  of  discretion  at  the  place  of  residence  or  business  of 
such  party,  apparently  acting  for  him ;  or,  3.  By  properly  folding 
the  notice,  directing  it  to  the  party  to  be  charged,  at  his  place  of 
residence,  according  to  the  best  information  that  the  person  giving 
the  notice  can  obtain,  depositing  it  in  the  post-office  most  conven- 
iently accessible  from  the  place  where  the  presentment  was  made, 
and  paying  the  postage  thereon.] 


152.  Form  in  use  in  Massachusetts. 

COMMONWEALTH  or  MASSACHUSETTS,]  , 
County  of  Suffolk,  f  S{ 

On  this day  of  ,  in  the  year  of  our  Lord  one  thousand 

eight  hundred  and ,  I,  Holland  Smith,  notary  public  by  legal 

authority  admitted  and  sworn,  and  dwelling  in  the  city  of  Boston, 
at  the  request  of  the  holders  [or  give  their  names]  of  the  city  of 
Boston,  went  with  the  original  bill  of  exchange,  of  which  the  fore- 
going is  a  true  copy,  [copy  is  prefixed]  to  the  country  house  of  M 
N,  and  presented  the  same  to  the  said  M  N  for  acceptance,  [or  pay- 
ment, as  the  case  may  be]  when  I  received  for  answer  that  the  same 
would  not  be  accepted  [or  state  whatever  the  real  state  of  the  facts 
may  be]. 

Whereupon,  I,  the  said  notary,  at  the  request  aforesaid,  have 


268  PKOTEST  AND  NOTICE. 

protested,  and  by  these  presents  do  solemnly  protest,  against  the 
drawer  of  said  bill  of  exchange,  indorsers,  and  all  others  concerned 
therein  for  exchange,  re-exchange,  and  all  costs,  charges,  damages, 
and  interest  suffered  and  sustained,  or  to  be  suffered  and  sustained, 
by  reason  of  or  in  consequence  of  the  non-acceptance  of  said  bill 
of  exchange. 

Thus  done  and  protested  in  Boston  aforesaid,  and  my  notarial 
seal  affixed,  the  day  and  year  last  written. 
[Notarial  seal.]  HOLLAND  SMITH, 

Notary  Public. 


153.  Form  in  Florida,  as  approved  in~Span  v.  Baltzell^  1  Fla.  801. 

TERRITORY  OP  FLORIDA,) 
Franklin  County,  )  SJ 

By  this  public  instrument  of  protest  be  it  known,  that  on  the 
25th  day  of  May,  1842,  at  the  request  of  Geo.  F.  Baltzell,  the 
holder  of  the  original  note,  of  which  a  true  copy  is  hereon  indorsed, 
I,  Marshall  P.  Ellis,  a  notary  public  residing  in  the  city  of  Appala- 
chicola,  qualified  according  to  law,  went  to  the  office  of  the  South- 
ern Life  insurance  Trust  Co.,  and,  presenting  said  note,  demanded 
payment  thereof  from  the  cashier,  who  refused  to  pay  the  same — 
that  no  funds  were  deposited  for  that  purpose. 

Whereupon,  I,  the  said  notary,  at  the  request  aforesaid,  do  hereby 
solemnly  and  publicly  protest  the  said  note,  as  well  against  the 
drawer  or  maker  thereof,  as  against  the  indorsers,  and  all  persons 
who  are  or  may  be  concerned  therein,  for  all  exchange,  re-exchange, 
damages,  costs,  charges,  and  interest  suffered  or  to  be  suffered  for 
the  non-payment  of  said  note. 

Thus  solemnly  done  and  protested. 

Given  under  my  hand  and  seal  at  Appalachicola,  t"he  day  and  year 
first  above  written.  M.  P.  ELLIS, 

Notary  Public. 

[This  form  was  used  thirty-five  years-  ago,  and  it  will  be  seen  it 
is  almost  identical  with  that  now  in  use ;  it  is  almost  the  same  as 
that  in  use  in  California.  In  fact,  there  is  no  substantial  difference 
between  any  of  the  forms  given,  except  some  are  more  formal  than 
others.] 

154.  Notice  of  protest  for  nonracceptance. 

To  JOHN  DOE  :  Take  notice,  that  a  bill  of  exchange  for  $500, 
dated  at  Boston,  May  1st,  1876,  payable  ten  days  after  sight,  drawn 
by  William  West  on  Charles  Cash,  to  the  order  of  Smith  &  Co., 
and  indorsed  by  you,  has  this  day  been  duly  protested  for  non- 
acceptance.  HOLLAND  SMITH, 

Dated  June  1st,  1876.  Notary  Public. 


PROTEST   AND   NOTICE.  269 

155.  Notice  of  protest  for  non-payment. 

To  RICHARD  ROE  :  Take  notice,  that  a  bill  of  exchange  for  $500, 
dated  at  Boston,  May  1st,  1876,  payable  ten  days  after  sight,  drawn 
by  Brown  and  Co.  on  Charles  Cash,  and  accepted  by  him  to  the 
order  of  Francis  Fish,  and  indorsed  by  you,  has  this  day  been 
duly  protested  for  non-payment.  HOLLAND  SMITH, 

Dated  July  1st,  1876.  Notary  Public. 

[In  neither  of  these  forms  is  it  stated  in  the  notice  that  the 
holder  looks  to  the  person  to  whom  notice  is  sent,  for  payment ; 
for  the  mere  fact  of  sending  the  notice  implies  this.  See  the 
chapter  on  Negotiable  Instruments.  But  it  is,  however,  often  so 
stated,  as  in  the  following  forms  :] 


156.  Form  of  notice  in  use  in  California. 

STATE  OF  CALIFORNIA, 
City  of  San  Francisco,  Nov.  1st,  1876. 

SIR  :  Please  take  notice,  that  a  certain  bill  of  exchange,  dated 
August  1st,  1876,  for  the  sum  of  $1,000,  payable  at  San  Francisco, 
and  drawn  by  Messrs.  Brown  &  Co.  in  favor  of  James  Smith,  was 
this  day  presented  by  me,  a  notary  public,  to  the  acceptor,  at  his 
place  of  business,  No.  14  California  Street,  San  Francisco,  and  pay- 
ment thereof  demanded,  which  was  refused,  and  the  said  bill  hav- 
ing been  dishonored,  the  same  was  this  day  protested  by  me  for 
non-payment  [or  non-acceptance,  as  it  may  be]  thereof,  and  the 
holder  looks  to  you  for  the  payment  thereof,  together  with  all  costs, 
charges  interest,  expenses,  and  damages  already  accrued,  or  that 
may  hereafter  accrue  thereon,  by  reason  of  the  non-payment  of  said 
bill  of  exchange.  Very  respectfully  yours,  etc., 

To  JOHN  SMITH,  ESQ.,  HOLLAND  SMITH, 

.  Notary  Public. 


157.          •  Notice  where  note  at  bank  Juts  been  protested. 

$1,000.  BOSTON,  November  1st,  1876. 

Please  take  notice,  that  a  promissory  note,  dated  July  1st,  1876, 
signed  by  David  Jones,  payable  to  James  Smith  or  order  at  the 
First  National  Bank  in  Boston,  for  the  sum  of  one  thousand  dollars, 
indorsed  by  you,  has  been  dishonored,  payment  having  been  duly 
demanded  at  its  maturity,  and  that  the  said  note  has  this  day  been 
protested  for  non-payment,  and  that  the  holder  looks  to  you  for  the 
payment  thereof.  Yours,  etc.,  HOLLAND  SMITH, 

To  RICHARD  BROWN,  ESQ.  Notary  Public. 

[It  is  unnecessary  to  give  any  further  forms,  as  they  all  embody 
substantially  the  same  particulars,  namely  :  a  description  of  the  in- 
strument dishonored,  the  fact  that  it  was  dishonored,  and  the  notifi- 
cation that  the  holder  looks  to  the  party  receiving  notice  for 


270  PROTEST    AND    NOTICE. 

indemnity,  and  even  this  last  particular,  though  usual  and  proper, 
may  be  omitted  without  rendering  the  notice  defective.  See  Sec. 
120  of  the. chapter  on  Negotiable  Instruments,  where  this  is  dis- 
cussed.] 


SHIP  PROTESTS. 

NOTE. — On  the  arrival  of  a  vessel  in  a  port  of  destination,  it  is 
customary  for  the  master  to  cause  an  entry  or  a  note  of  a  protest 
to  be  made,  which  is  signed  by  him  at  the  office  of  a  notary.  Drawn 
up  in  this  manner,  it  usually  contains  certain  particulars  of  the 
voyage,  the  port  of  departure,  the  name  of  the  vessel,  the  time 
of  entering  the  port  of  destination,  and  the  nature  of  her  cargo. 
The  general  mode  of  doing  this  is  in  a  printed  registry,  which  con- 
tains the  formal  parts,  with  proper  blanks  in  which  the  above  par- 
ticulars are  inserted.  This  ceremony  is  kno\yn  as  noting  a  protest, 
or  entering  a  note  of  protest,  which  may  be  done  on  the  day  of 
arrival,  or  the  next  day,  though  it  is  claimed,  according  to  commer- 
cial usage,  it  is  not  too  late  to  do  it  forty-eight  hours  after  the  ar- 
rival in  port. 

But  the  more  important  occasions  for  entering  or  making  a  pro- 
test are  when  some  mishap  or  accident  befalls  a  vessel,  disabling 
either  the  vessel  or  her  crew,  or  injuring  her  cargo.  The  protest 
then  becomes  a  very  useful  and  important  matter,  as  it  may  be  the 
basis  on  which  adjustment  for  losses  may  be  made,  and  for  refer- 
ence in  calculating  general  average.  When  some  accident  befalls 
a  vessel  during  her  voyage,  it  is  the  duty  of  the  master,  011  the  first 
convenient  occasion,  to  proceed  to  the  office  of  a  notary  at  the  first 
port  he  reaches,  and  cause  an  entry  or  note  of  protest  of  this  to  be 
made.  But  there  is  no  obligation  on  him  to  put  his  vessel  in  any 
peril  to  reach  a  port  in  order  to  make  this  protest.  Subsequently 
to  this  noting  or  entry  of  a  protest,  a  more  formal  and  regular  pro- 
test is  made  after  the  arrival  in  port,  by  the  master  and  others  of 
the  crew,  generally  the  nfaster,  mate,  and  a  seaman,  who  sign  and 
declare  to  it  before  a  notary,  who  may  be  the  one  before  whom  the 
first  entry  was  made,  or  a  different  one. 

There  is  no  particular, form  prescribed  for  a  ship  protest;  it  gen- 
erally consists  of  two  parts :  the  first  is  a  statement  or  declaration 
of  the  facts  and  circumstances  of  the  voyage,  and  the  storms  or 
bad  weather  which  the  vessel  may  have  encountered,  or  any  acci- 
dents which  may  have  happened  during  the  course  of  the  voyage ; 
and  the  other  is  the  part  in  which  the  appearers  or  the  notary,  or 
both  the  appearers  or  the  notary,  protest  against  the  accidents  or 
causes  of  the  injury,  and  against  all  loss  or  damage  occasioned 
thereby,  and  at  the  end  is  an  attestation  or  certificate  under  the 
hand  and  seal  of  the  notary. 

The  protesting  part  need  not  be  spun  out  to  any  length ;  it  is  a 
mere  form,  and  a  few  words  are  sufficient.  For  example,  in  case  of 
damage  or  injury  by  storms  or  stress  of  weather,  it  may  be  aa 
follows : 


PEOTEST   AND   NOTICE.  271 

"  The  appearers,  A  B,  C  D,  and  E  F,  do  protest,  and  I,  the  un- 
dersigned notary,  do  also  protest,  against  the  bad"  weather,  gales, 
storms,  accidents,  and  occurrences  mentioned  in  the  foregoing  state- 
ment, [or  hereunto  annexed,  as  the  case  may  be]  and  all  loss  or 
damage  occasioned  thereby  "  ;  and  it  concludes  with  an  attestation 
or  short  certificate,  under  the  hand  and  seal  of  the  notary,  to  the 
effect  that  it  was  declared  and  protested  in  due  form. 

The  statutes  of  the  United  States  (Rev.  Stat.  Sec.  2891)  pro- 
vide :  "  If  any  vessel  from  any  foreign  port,  compelled  by  stress  of 
weather  or  other  necessity,  shall  put  into  any  port  of  the  United 
States,  not  being  destined  for  the  same,  the  master,  together  with 
the  mate,  or  person  next  in  command,  may,  within  twenty-four 
hours  after  her  arrival,  make  protest  in  the  usual  form  upon  oath 
before  a  notary  public,  or  other  person  duly  authorized,  or  before  the 
collector  of  the  district  where  the  vessel  arrives,  setting  forth  the 
cause  or  circumstances  of  such  distress  or  necessity.  Such  protest, 
if  not  made  before  the  collector,  shall  be  produced  to  him,  and  to  the 
naval  officers,  if  any,  and  a  copy  thereof  lodged  with  him  or  them. 
The  master  shall  also,  within  forty-eight  hours  after  such  arrival, 
make  report  in  writing,  to  the  collector,  of  the  vessel  and  her  cargo, 
as  is  directed  herebTr  to  be  done  in  other  cases." 


158.  Entry  or  note  of  a  ship  protest. 

UNITED  STATES  OF  AMERICA,          ^ 
State  of  California,  >•  ss. 

City  and  County  of  San  Francisco,  ) 

On  this  1st  day  of  February,  in  the  year  one  thousand  eight 
hundred  and  seventy-seven,  personally  appeared  before  me,  the  un- 
dersigned, a  notary  public  for  the  State  of  California,  at  my  office, 
No.  309  Montgomery  Street,  in  the  city  of  San  Francisco,  Peter 
Brine,  master  of  the  ship  or  vessel  Thyra,  of  Bristol,  England, 
and  declared  that  said  ship  sailed  on  a  voyage  from  Charleston,  in 
the  United  States  of  America,  on  the  first  day  of  November  last, 
bound  for  Portland,  Oregon,  with  a  cargo  of  hardware,  but  that  in 
the  prosecution  of  her  voyage  [here  state  fully  the  particulars  of 
the  accident,  etc.~]. 

Wherefore,  the  said  master  doth  hereby  give  notice  of  his  inten- 
tion of  protesting  against  the  aforesaid  matters  and  things,  acci- 
dents and  occurrences,  and  ail  damage  and  loss  sustained  thereby, 
and  causes  this  note  or  minute  of  all  and  singular  the  premises  to 
be  entered.  PETEE  BEINE, 

HOLLAND  SMITH,  Master. 

Notary  Public. 

[This  note  or  memorandum  must  be  entered  in  a  book  of  "  Ship 
Protests,"  to  be  kept  by  the  notary.  The  outline  of  the  form  may 
be  printed,  with  blanks  in  which  the  particular  circumstances  of  the 
case  are  written.  A  certified  copy  of  this  noting  may  be  given  to 
the  master.] 


272  PROTEST  AND   NOTICE. 

158.  Regular  or  extended  ship  protest. 

UNITED  STATES  OF  AMERICA,         "J 
State  of  California,  >•  ss. 

City  and  County  of  San  Francisco,  ) 

By  this  public  instrument  of  declaration  and  protest,  be  it  known  : 
That  on  this  second  day  of  February,  in  the  year  one  thous- 
and eight  hundred  and  seventy-seven,  before  me,  Holland  Smith, 
a  notary  public  for  the  State  of  California,  duly  commissioned  and 
sworn,  and  dwelling  in  the  city  of  San  Francisco,'in  said  State,  per- 
sonally came  and  appeared  Peter  Brine,  master  and  commander  of 
the  ship  or  vessel  the  Thyra,  belonging  to  Bristol,  England ;  also 
John  Mainsell,  first  mate,  and  James  Quick  and  Thomas  Crosstree, 
seamen  of  said  ship,  who  did,  upon  oath  duly  administered,  sever- 
ally and  solemnly  declare  and  state  as  follows  [here  give  a  futt 
statement  of  the  particulars  that  occasion  the  protest]. 

And  the  said  Peter  Brine,  master,  further  declares  that  on  the 
day  of  the  arrival  of  the  said  ship  at  this  port,  he  appeared  at  the 
offic"e  of  ,  [insert  name]  a  notary  public  for  the  State  of  Cali- 
fornia, in  said  city  of  San  Francisco,  and  duly  noted  and  entered 
his  protest,  and  now  extends  the  same. 

Wherefore,  these  appearers,  as  well  as  I,  the  said  notary,  do  pro- 
test against  all  and  singular  the  premises,  the  aforesaid  bad  weather, 
gales,  storms,  winds,  high  seas,  accidents,  casualties,  occurrences, 
and  all  loss,  damage,  and  expense  sustained  thereby  or  arising 
therefrom.  PETEE  BRINE,  Master. 

JOHN  MAINSELL,  Mate. 
JAMES  QUICK,  Seaman. 
THOMAS  CEOSSTEEE,  Seaman. 

Thus  declared,  protested,  subscribed,  and  sworn  to,  at  the  city 
of  San  Francisco,  the  day  and  year  aforesaid,  before  me,  and  I  have 
hereunto  set  my  hand  and  seal  of  office.  HOLLAND  SMITH, 

[Seal.]  Notary  Public. 


160.  Deed  with  fuU  covenants  and  warranty. 

This  indenture,  made  the day  of ,  in  the  year  one  thoxis- 

ancl  eight  hundred  and  seventy ,  between  and ,  his 

wife,  of  the  city  of  ,  in  ttie  county  of  ,  State  of  , 

parties  of  the  first  part,  and ,  of  the  same  place,  party  of  the 

second  part,  Witnesseth :  That  the  said  parties  of  the  first  part, 

for  and  in  consideration  of  the  sum  of  dollars,  lawful  money 

of  the  United  States,  to  them  in  hand  paid  by  the  same  party  of 
the  second  part,  at  or  before  the  ensealing  and  delivery  of  these 
presents,  the  receipt  whereof  is  hereby  acknowledged,  and  the  said 
party  of  the  second  part,  his  heirs,  executors,  and  administrators, 
forever  released  and  discharged  from  the  same,  by  these  presents, 
have  granted,  bargained,  sold,  aliened,  remised,  released,  conveyed, 
and  confirmed,  and  by  these  presents  do  grant,  bargain,  sell,  alien, 
remise,  release,  convey,  and  confirm,  unto  the  said  party  of  the 
second  part,  and  to  his  heirs  and  assigns  forever,  all  that  certain 
[here  insert  a  desertion  of  the  premises] ;  together  with  all  and 
singular  the  tenements,  hereditaments,  and  appurtenances  there- 
unto belonging  or  in  any  wise  appertaining,  and  the  reversion  and 
reversions,  remainder  and  remainders,  rents,  issues,  and  profits 
thereof.  And  also,  all  the  estate,  right,  title,  interest,  dower, 
right  of  dower,  property,  possession,  claim,  and  demand  whatso- 
ever, as  well  in  law  as  in  equity,  of  the  said  parties  of  the  first  part 
of,  in,  and  to  the  same,  and  every  part  and  parcel  thereof,  with  the 
appurtenances.  To  have  and  to  hold  the  above  granted,  bargained, 
and  described  premises,  with  the  appurtenances,  unto  the  said 
party  hereto  of  the  second  part,  his  heirs  and  assigns,  to  his  and 
their  own  proper  use,  benefit,  and  behoof  forever.  \Here  insert  a 
description  of  any  incumbrance  to  which  the  premises  are  subject.] 

And  the  said ,  for  himself,  his  heirs,  executors,  and  adminis- 
trators, doth  covenant,  grant,  and  agree  to  and  with  the  same  party 

of  the  second  part,  his  heirs  and  assigns,  that  the  said ,  at  the. 

time  of  the  sealing  and  delivery  of  these  presents,  is  lawfully 
seized,  in  his  own  right,  of  a  good,  absolute,  and  indefeasible  estate 
of  inheritance  in  fee-simple, 'of  and  in,  all  and  singular,  the  above 
granted,  bargained,  and  described  premises,  with  the  appurtenances, 
(subject  as  aforesaid)  and  hath  good  right,  full  power,  and  law- 
ful authority  to  grant,  bargain,  sell,  and  convey  the  same  in  man- 
ner and  form  aforesaid.  And  that  the  said  party  of  the  second 

NOTARIES— 18.  [  273  ] 


274  LEGAL   INSTRUMENTS. 

part,  his  heirs  and  assigns,  shall  and  may,  at  all  times  thereafter, 
peaceably  and  quietly  have,  hold,  use,  occupy,  possess,  and  enjoy 
the  above  granted  premises,  and  every  part  and  parcel  thereof, 
with  the  appurtenances,  without  any  let,  suit,  trouble,  molestation, 
eviction,  or  disturbance  of  the  said  parties  of  the  first  part,  their 
heirs  or  assigns,  or  of  any  other  person  or  persons  lawfully  claim- 
ing or  to  claim  the  same,  and  that  the  same  now  are  free,  clear, 
discharged,  and  unincumbered  of  and  from  all  former  and  other 
grants,  titles,  charges,  estates,  judgments,  taxes,  assessments,  and 
incumbrances  of  what  n-ature  and  kind  soever  (except  as  aforesaid). 
And  also,  that  the  said  parties  of  the  first  part,  and  their  heirs, 
and  all  and  every  other  person  or  persons  whatsoever,  lawfully  or 
equitably  deriving  any  estate,  right,  title,  or  interest  of,  in,  or  to 
the  hereinbefore  granted  premises,  by,  from,  under,  or  in  trust  for 
them,  shall  and  will,  at  any  time  or  times  hereafter,  upon  the  rea- 
sonable request,  and  at  the  proper  costs  and  charges  in  law,  of  the 
said  party  of  the  second  part,  his  heirs  and  assigns,  make,  do,  and 
execute,  or  cause  or  procure  to  be  made,  done,  and  executed,  all  and 
every  such  further  and  other  lawful  and  reasonable  acts,  convey- 
ances, and  assurances  in  the  law,  for  the  better  and  more  effectually 
vesting  and  confii-ming  the  premises  hereby  intended  to  be  granted 
in  and  to  the  said  party  of  the  second  part,  his  heirs  or  assigns,  or 
his  counsel  learned  in  the  law,  shall  be  reasonably  devised,  advised, 
or  required. 

And  the  said and  his  heirs,  the  above  described  and  hereby 

granted  and  released  premises,  and  every  part  and  parcel  thereof, 
with  the  appurtenances,  unto  the  said  party  of  the  second  .part, 
his  heirs  and  assigns,  against  the  said  parties  of  the  first  part,  their 
heirs,  and  against  all  and  every  person  or  persons  whomsoever,  law- 
fully claiming  or  to  claim  the  same,  shall  and  will  warrant  and  by 
these  presents  forever  defend. 

In  witness  whereof,  the  said  parties  of  the  first  part  have  here- 
unto set  their  hands  and  seals,  the  day  and  year  first  above  written. 

[Seal.] 

[Seal] 

Sealed  and  delivered  in  the  presence 

of . 

[This  is  the  form  of  deed  generally  used  in  New  York,  New 
Jersey  and  Pennsylvania,  and  nearly  all  the  Eastern  States.  This 
is  the  highest  and  most  satisfactory  form  of  conveyance.  It  gives 
the  greatest  assurance  to  the  grantee,  as  it  contains  full  covenants, 
which,  on  examination,  may  be  divided  into  those  present  and  those 
for  the  future.  First,  there  are  three  referring  to  the  present,  that  is 
(1)  a  covenant  as  to  title ;  (2)  as  to  power  to  convey ;  (3)  as  to 
incumbrances.  And  as  to  the  future,  there  are  covenants:  (1)  for 
quiet  enjoyment;  (2)  as  to  defending  title  against  the  acts  of 
others;  and  (3)  as  to  the  grantor's  own  acts.  In  some  of  our  States, 
the  forms  of  conveyances  are  much  simplified  by  statute,  as  will 
appear  from  those  afterward  given.] 


LEGAL   INSTRUMENTS.  275 

161.  Form  of  deed  prescribed  by  Civil  Code  in  California. 

I,  A  B,  grant  to  C  D  all  that  real  property  situated  in  

[insert  name  of  county']  County,  State  of  California,  bounded  [or 
described]  as  follows :  [here  insert  description,  or  if  the  land  sought 
to  be  conveyed  has  a  descriptive  name,  it  may  be  described  by  the 
name,  as,  for  instance,  "  The  Norris  Ranch"] 

Witness  my  hand  this  [insert  day~\  day  of  ,  [insert 

month]  18 .  A B— — . 

[It  will  be  observed  that  this  form  omits  the  recital  of  a  consid- 
eration ;  but  such  a  recital  is  unnecessary  under  the  law  of  Cali- 
fornia, as  it  is  provided  that  the  writing  imports  of  itself  a  consid- 
eration. Though  this  form  is  prescribed  by  statute,  it  is  not  in 
general  use,  because  it  contains  no  warranties,  and  the  practice  is, 
on  most  occasions,  to  use  the  longer  forms.] 

162.  Warranty  deed,  Calif ornia  form. 

This  indenture,  made  the  day  of ,  in  the  year  of  our 

Lord  one  thousand  eight  hundred  and  seventy ,  between , 

of ,  the  party  of  the  first  part,  and ,  of ,  the  party  oi 

the  second  part,  Witnesseth :  That  the  said  party  of  the  first  part, 

for  and  in    consideration  of   the    sum    of    dollars    of    the 

United  States  of  America,  to  him  in  hand  paid  by  the  said  party 
of  the  second  part, -the  receipt  whereof  is  hereby  acknowledged, 
does .  by  these  presents  grant,  bargain,  sell,  convey,  and  confirm 
unto  the  said  party  of  the  second  part,  and  to  his  heirs  and  assigns 

forever, [here  give  description  of  property].      Together  with 

all  and  singular  the  tenements,  hereditaments,  and  appurtenances 
thereunto  belonging,  or  in  any  wise  appertaining,  and  the  reversion 
and  reversions,  remainder  and  remainders,  rents,  issues,  and  profits 
thereof.  To  have  and  to  hold  all  and  singular  the  above  mentioned 
and  described  premises,  together  with  the  appurtenances,  unto  the 
said  party  of  the  second  part,  and  to  his  heirs'  and  assigns  forever. 

And  the  said  party  of  the  first  part,  and  his  heirs,  the  said  prem- 
ises in  the  quiet  and  peaceable  possession  of  the  said  party  of  the 
second  part,  his  heirs  and  assigns,  against  the  said  party  of  the 
first  part,  and  his  heirs,  and  against  all  and  every  person  and 
persons  whomsoever,  lawfully  claiming  or  to  claim  the  same,  shall 
and  will  warrant,  and  by  these  presents  ever  defend. 

In  witness  whereof,  the  said  party  of  the  first  part  has  hereunto 
set  his  hand  and  seal  the  day  and  year  first  above  written. 

..  [Seal] 

Signed,  sealed,  and  delivered  in  the  presence 
of . 


163.  Warranty  deed,  Illinois  form. 

This  indenture,  made  this day  of  ,  in  the  year  of  our 

Lord  one  thousand  eight  hundred  and  seventy ,  between .• 


276  LEGAL   INSTRUMENTS. 

of  the ,  in  the  county  of  and  State  of -,  party  of  the 

first  part,  and ,  of  the ,  in  the  county  of  and  State 

of  ,  party  of  the  second   part,  "Witnesseth :   That  the   said 

party  of  the  first  part,  for  and  in  consideration  of  the  sum  of 

dollars,  in  hand  paid  by  the  said  party  of  the  second  part,  the  re- 
ceipt whereof  is  hereby  acknowledged,  and  the  said  party  of  the 
second  part  forever  released  and  discharged  therefrom,  has  bar- 
gained, sold,  remised,  released,  conveyed,  aliened,  and  confirmed, 
and  by  these  presents  dees  grant,  bargain,  sell,  remise,  release,  con- 
vey, alien,  and  confirm,  unto  the  said  party  of  the  second  part,  and 
to  his  heirs  and  assigns  forever,  all  the  following  described  lot, 

piece,  or  parcel  of  laud,  situated  in  the  county  of  and  State 

of  ,  and  known  and  described  as  follows,  to  wit :  [here  give  a 

description  of  the  property']  together  with  all  and  singular  the 
hereditaments  and  appurtenances  thereunto  belonging,  or  in  any- 
wise appertaining,  and  the  reversion  and  reversions,  remainder  and 
remainders,  rents,  issues,  and  profits  thereof ;  and  all  the  estate, 
right,  title,  interest,  claim,  or  demand  whatsoever,  of  the  said  party 
of  the  first  part,  either  in  law  .or  equity,  of,  in,  and  to  the  above 
bargained  premises,  with  the  hereditaments  and  appurtenances.  To 
have  and  to  hold  the  said  premises  above  bargained  and  described, 
with  the  appurtenances,  unto  the  said  party  of  the  second  part,  his 
heirs  and  assigns  forever ;  and  the  said  party  of  the  first  part  for  his 
heirs,  executors,  and  administrators,  does  covenant,  grant,  bargain, 
and  agree,  to  and  with  the  said  party  of  the  second  part,  his  heirs 
and  assigns,  that  at  the  time  of  the  ensealing  and  delivery  of  these 
presents,  he  was  well  seized  of  the  premises  above  conveyed,  as  of 
a  good,  sure,  perfect,  absolute,  and  indefeasible  estate  of  inheritance 
in  law,  in  fee-simple,  and  has  good  right,  full  power,  and  lawful  au- 
thority to  grant,  bargain,  sell,  and  convey  the  same  in  manner  and 
form  aforesaid,  and  that  the  same  are  free  and  clear  from  all  former 
and  other  grants,  bargains,  sales,  liens,  taxes,  assessments,  and  in- 
cumbrances,  of  what  kind  and  nature  soever.  And  the  above  bar- 
gained premises  in  the  quiet  and  peaceable  possession  of  the  said 
party  of  the  second  part,  his  heirs  and  assigns,  against  all  and  every 
other  person  or  persons  lawfully  claiming,  or  to  claim,  the  whole  or 
any  part  thereof,  the  said  party  of  the  first  part  shall  and  will  war- 
rant and  forever  defend.  And  the  said  party  of  the  first  part 
hereby  expressly  waives  and  releases  any  and  all  right,  benefit, 
privilege,  advantage,  and  exemption,  under  or  by  virtue  of  any  and 
nil  statutes  of  the  State  of  Illinois,  providing  for-  the  exemption  of 
homesteads  from  sale,  on  execution  or  otherwise. 

In  witness  whereof,  the  said  party  of  the  first  part  has  hereunto 
set  his  hand  and  seal  the  day  and  year  first  above  written. 

.  [Seal] 

Signed,  sealed,  and  delivered  in  the  presence 
of . 


LEGAL    INSTRUMENTS.  277 

164.  Warranty  deed  in  Illinois,  Statutory  form. 

The  grantor, ,  of  the ,  iu  the  county  of and  State 

of ,  for  and  in  consideration  of dollars  in  hand  paid,  con- 
veys and  warrants  to  ,  of  the  ,  county  of and  State 

of  ,  the  following  described  real  estate,  to  wit:    [here  give 

a  description  of  the  property^  situated  in  the  county  of  ,  in 

the   State    of    Illinois,  hereby  releasing   and  waiving  all  rights 
under  and  by  virtue  of  the  homestead  exemption  laws  of  this  State. 

Dated  this day  of ,  A.  D.  18 . 

.  [Seal.] 

Signed,  sealed,-and  delivered  in  presence 
of . 

165.  Kansas  warranty  deed. 

Know  all  men  by  these  presents,  that ,  in  consideration  of 

dollars  to  him  paid  by ,  the  receipt  whereof  is  hereby  ac- 


knowledged, does  hereby  grant,  bargain,  sell,  and  convey  to  the 

said ,  his  heirs  and  assigns  forever,  [here  give  a  description  of 

the  property]  and  all  the  estate,  title,  and  interest  of  the  said , 

either  in  law  or  in  equity,  of,  in,  and  to  the  said  premises,  together 
with  all  the  privileges  and  appurtenances  to  the  same  belonging, 
and  all  the  rents,  issues,  and  profits  thereof.  To  have  and  to  hold 
the  same  to  the  only  proper  use  of  the  said ,  his  heirs  and  as- 
signs forever. 

And  the  said ,  for  himself  and  for  his  heirs,  executors,  and 

administrators,  does  hereby  covenant  with  the  said ,  his  heirs 

and  assigns,  that  he  is  the  true  and  lawful  owner  of  the  said  prem- 
ises, and  has  full  power  to  convey  the  same ;  and  that  the  title  so 
conveyed  is  clear,  free,  and  unincuinbered ;  and  further,  that  he 
will  warrant  and  defend  the  same  against  all  claim  or  claims  of 
all  persons  whomsoever. 

In  witness  whereof,  the  said has  hereunto  set  his  hand  and 

seal,  this day  of ,  in  the  year  of  our  Lord  one  thousand 

eight  hundred  and  seventy  .  .  [/Sea/.] 

Signed,  executed,  and  acknowledged 
in  presence  of  us, . 


166.  Kentucky  warranty  deed. 

Know  all  men  by  these  presents,  that ,  of  ,  for  and  in 

consideration  of  dollars,  to  him  paid  by  ,  of  ,  the 

receipt  whereof  is  hereby  acknowledged,  does  hereby  bargain,  sell, 
and  convey  to  the  said ,  his  heirs  and  assigns  forever,  the  fol- 
lowing described  real  estate,  to  wit :  [here  give  description  of  the' 
property] ;  together  with  all  the  privileges  and  appurtenances  to 

the  same  belonging.     To  have  and  to  hold  the  same  to  the  said , 

his  heirs  and  assigns  forever,  the  grantor,  his  heirs,  executors,  and 
administrators  hereby  covenanting  with  the  grantee,  his  heirs  and 


278  LEGAL   INSTRUMENTS. 

assigns,  that  the  title  so  conveyed  is  clear,  free,  and  unincumbercd, 
and  that  he  will  warrant  and  defend  the  same  against  all  legal 
claims  whatsoever. 

In  witness  whereof,  the  said has  hereunto  set  his  hand,  this 

day  of  ,  in  the  year  187 . 

Teste : 

167.  Quitclaim  deed  in  use  in  New  YbrJc. 

This  indenture,  made  the day  of ,  in  the  year  one  thous- 
and eight  hundred  and  seventy ,  between ,  of  the  city  of 

New  York,  county  of  New  York,  and  State  of  New  York,  party 

of  the  first  part,  and  ,  of  the  city  of  Rochester,  county  of 

Monroe,  and  State  of  New  York,  party  of  the  second  part,  Wit- 
nesseth  :  That  the  said  party  of  the  first  part,  for  and  in  consider- 
ation of  the  sum  of  one  dollar,  lawful  money  of  the  United  States 
of  America,  to  him  in  hand  paid  by  the  said  party  of  the  second 
part,  at  or  before  the  cnsealing  and  delivery  of  these  presents,  the 
receipt  whereof  is  hereby  acknowledged,  hath  remised,  released, 
and  quitclaimed,  and  by  these  presents  doth  remise,  release,  and 
quitclaim  unto  the  said  party  of  the  second  part,  and  to  his  heirs 
and  assigns  forever,  all  that  certain  lot,  piece,  or  parcel  of  land, 
[here  insert  full  description]  together  with  all  and  singular  the 
tenements,  hereditaments,  and  appurtenances  thereunto  belonging, 
or  in  anywise  appertaining,  and  the  reversion  and  reversions,  re- 
mainder and  remainders,  rents,  issues,  and  profits  thereof.  And  also, 
all  the  estate,  right,  title,  interest,  property,  possession,  claim,  and 
demand  whatsoever,  as  well  in  law  as  in  equity,  of  the  said  party  of 
the  first  part,  of,  in,  or  to  the  above  described  premises,  and  every 
part  and  parcel  thereof,  with  the  appurtenances.  To  have  and  to 
hold  an  and  singular  the  above  mentioned  and  described  premises, 
^together  with  the  appurtenances,  unto  the  said  party  of  the  second 
part,  his  heirs  and  assigns  forever. 

In  witness  whereof,  the**said  party  of  the  first  part  has  hereunto 
set  his  hand  and  seal  the  day  and  year  first  above  written. 

Sealed  and  delivered  in  the  presence 
of . 

(The  form  of  quitclaim  in  use  in  California  is  identical  with  this 
in  New  York.] 


168.  Illinois  quitclaim  deed^  statutory  form. 

The  grantor, ,  of  the -,  in  the  county  of  and  State 

of  ,  for  the  consideration  of  dollars,  conveys  and  quit- 
claims to  :,  of  the  ,  county  of  and  State  of , 

all  interest  in  the   following  described    real    estate :    [here  give 
description  of  property] ;  situated  in  the  county  of  in  the 


LEGAL    INSTRUMENTS.  279 

State  of  Illinois,  hereby  releasing  and  waiving  all  Tights  under  and 
by  virtue  of  the  homestead  exemption  laws  of  this  State. 

Dated  this day  of ,  A.  D.  18 . 

.  [Seal.] 

Signed,  sealed,  and  delivered  in  presence 

of . 


169.  Quitclaim  deedy  Michigan  form. 

This  indenture,  made  the day  of  ,  in  the  year  of  our 

Lord  one  thousand  eight  hundred  and  seventy ,  between  — ; — , 

of  the  ,  party  of  the  first  part,  and  ,  of  the ,  party 

of    the    second    part,   Witnesseth:  That  the   said    party  of  the 

first  part,   for   and  in  consideration  of  the  sum  of  dollars 

.  to  him  in  hand  paid  by  the  said  party  of  the  second  part,  the  re- 
ceipt whereof  is  hereby  confessed  and  acknowledged,  does  by 
these  presents  grant,  bargain,  sell,  remise,  release,  and  forever  quit- 
claim unto  the  said  party  of  the  second  part  and  to  his  heirs  and 
assigns  forever  \here  give  description  of  property].  Together  with 
all  and  singular  the  hereditaments  and  appurtenances  thereunto 
belonging  or  in  anywise  appertaining.  To  have  and  to  hold  the  said 
premises  to  the  said  party  of  the  second  part,  and  to  his  heirs  and 
assigns,  to  the  sole  and  only  proper  use,  benefit,  and  behoof  of  the 
said  party  of  the  second  part,  his  heirs  and  assigns  forever. 

In  witness  whereof,  the  said  party  of  the  first  part  has  hereunto 
set  his  hand  and  seal,  the  day  and  year  first  above  written. 

.  [Seal] 

Signed,  sealed,  and  delivered  in  presence 

of . 

[There  is  not  much  variance  in  the  forms  of  quitclaim  deeds  in  use 
in  our  various  States.  Such  a  form  of  a  deed  is  generally  given 
when  a  person  relinquishes  some  claim  or  title  to  property,  and 
when  he  gives  up  a  right  which  he  holds  in  common  with  others. 
In  these  cases,  it  is  the  simplest  and  most  direct  method  to  release 
his  interest  and  title,  as  well  as  convey  that  interest.  This  form  of 
deed  has  long  been  in  use  in  this  countrv.  Washburne,  Heal  Prop. 
Vol.  3,  p.  3uy. 

The  operative  words  of  release  in  a  simple  quitclaim  deed  are, 
"remise,  release,  and  quitclaim";  but  where  the  words  "bargain, 
sell,  and  quitclaim  "  are  employed,  they  operate,  not  merely  to  re- 
lease, but  to  transfer  any  interest  which  the  grantor  possesses  at 
the  execution  of  the  deed.  Touchard  v.  Crow,  20  Cal.  150.  A 
grantee  under  a  quitclaim  deed  can  maintain  ejectment  under  it, 
if  his  grantor  could  have  done  so.  Sullivan  v.  Davis,  4  Cal.  291 ; 
Carpentier  v.  Williamson,  25  Cal.  168.] 

liO.  Mortgage — -form  in  use  in  New  York. 

This  indenture,  made  the day  of ,  in  the  year  one  thous- 
and eight  hundred  and  seventy ,  between  A  B  and  C  D,  his  wife, 


280  LEGAL    INSTRUMENTS. 

of  the  city,  county,  and  State  of  New  York,  parties  of  the  first 

part,  and  M  N,  of  the  ,  of  ,  county  of   ,  and  State 

aforesaid,  party  of  the  second  part :  Whereas,  the  said  A  B  is  justly 
indebted  to  the  said  party  of  the  second  part  in  the  sum  of  five 
thousand  dollars,  lawful  money  of  the  United  States  of  America, 
secured  to  be  paid  by  his  certain  bond  or  obligation,  bearing  even 
date  with  these  presents,  in  the  penal  sum  of  ten  thousand  dollars, 
lawful  money  as  aforesaid,  conditioned  for  the  payment  of  the  said 
first  mentioned  sum  of  five  thousand  dollars,  on  the  first  day  of 
July,  in  the  year  one  thousand  eight  hundred  and  seventy-seven, 
with  interest  thereon  at  and  after  the  rate  of  seven  per  cent,  per 
annum,  payable  semi-aunually  on  the  first  days  of  January  and  July, 
in  each  and  every  year,  which  said  bond  also  contains  an  agree- 
ment that  should  any  default  be  made  in  the  payment  of  the  said 
interest  or  any  part  thereof,  on  any  day  whereon  the  same  is  made 
payable  as  above  expressed,  and  should  the  same  remain  unpaid 
and  in  arrear  for  the  space  of  thirty  days,  that  then  and  from 
thenceforth,  that  is  to  say,  after  the  lapse  of  the  said  thirty  days, 
the  aforesaid  principal  sum  of  five  thousand  dollars,  with  all  arrear- 
age of  interest  thereon,  shall,  at  the  option  of  the  said  party  of  the 
second  part,  or  his  legal  representatives,  become  and  be  due  and 
payable  immediately  thereafter,  although  the  time  limited  for  the 
payment  thereof  may  not  then  have  expired,  anything  in  the  said 
bond  contained  to  the  contrary  thereof  in  anywise  notwithstanding : 
as  by  the  said  bond  or  obligation,  and  the  condition  thereof,  and  the 
said  agreement  therein  contained,  reference  being  thereto  had  may 
more  fully  appear.  Now  this  indenture  Witnesseth :  That  the  said 
parties  of  the  first  part,  for  the  better  securing  the  payment  of  the 
said  sum  of  money  mentioned  in  the  condition  of  the  said  bond  or 
obligation,  with  interest  thereon,  according  to  the  true  intent  and 
meaning  thereof,  and  also  for  and  in  consideration  of  the  sum  of 
one  dollar,  to  them  in  hand  paid  by  the  said  party  of  the  second 
part,  at  or  before  the  ensealing  and  delivery  of  these  presents,  the 
receipt  whereof  is  hereby  -acknowledged,  have  granted,  bargained, 
sold,  aliened,  released,  conveyed,  and  confirmed,  and  by  these  pres- 
ents do  grant,  bargain,  sell,  alien,  release,  convey,  and  confirm  unto 
the  said  party  of  the  second  part,  and  to  his  heirs  and  assigns  for- 
ever, all  [here  insert  full  description  ;  and  if  the  mortgage  is  given 
to  secure  part  of  the  pur  chase-money ,  add  at  the  end  of  this  clause  : 
Being  the  same  premises  conveyed  to  the  said  party  of  the  first 
part  by  the  said  party  of  the  second  part,  by  deed  bearing  even 
date  herewith,  and  this  mortgage  is  given  to  secure  part  of  the  con- 
sideration or  purchase-money  in  such  deed  expressed.]  Together 
with  all  and  singular  the  tenements,  hereditaments,  and  appurte- 
nances thereunto  belonging,  or  in  anywise  appertaining,  and  the  re- 
version and  reversions,  remainder  and  remainders,  rents,  issues, 
and  profits  thereof.  And  also,  all  the  estate,  right,  title,  interest, 
dower,  right  of  dower,  property,  possession,  claim,  and  demand 
whatsoever,  as  well  in  law  as  in  equity,  of  the  said  parties  of  the 
first  part,  of,  in,  and  to  the  same,  and  every  part  and  parcel  thereof, 
with  the  appurtenances.  To  have  and  to  hold  the  above  granted 


LEGAL,    INSTRUMENTS.  281 

and  described  premises,  with  the  appurtenances,  unto  the  said  party 
of  the  second  part,  his  heirs  and  assigns,  to  his  and  their  own 
proper  use,  benefit,  and  behoof  forever.  Provided  always,  and 
( these  presents  are  upon  this  express  condition,  that  if  the  said  par- 
'ties  of  the  first  part,  their  heirs,  executors,  or  administrators,  shall 
well  and  truly  pay  unto  the  said  party  of  the  second  part,  his  ex- 
ecutors, administrators,  or  assigns,  the  said  sum  of  money  men- 
tioned in  the  condition  of  the  said  bond  or  obligation,  and  the  in- 
terest thereon,  at  the  time  and  in  the  manner  mentioned  in  the  said 
condition,  according  to  the  true  intent  and  meaning  thereof,  that 
then  these  presents,  and  the  estate  hereby  granted,  shall  cease,  de- 
termine, and  be  void.  And  the  said  A  B,  for  himself,  his  heirs,  ex- 
ecutors, and  administrators,  doth  covenant  and  agree  to  pay  unto 
the  said  party  of  the  second  part,  his  executors,  administrators,  or 
assigns,  the  said  sum  of  money  and  interest,  as  mentioned  above, 
and  expressed  in  the  condition  of  the  said  bond.  And  if  default 
shall  be  made  in  the  payment  of  the  said  sum  of  money  above  men- 
tioned, or  the  interest  that  may  grow  due  thereon,  or  of  any  part 
thereof,  that  then  and  from  thenceforth  it  shall  be  lawful  for  the 
said  party  of  the  second :  part,  his  executors,  administrators,  or  as- 
signs, to  enter  into  and  upon  all  and  singular  the  premises  hereby 
granted,  or  intended  so  to  be,  and  to  sell  and  dispose  of  the  same, 
and  all  benefit  and  equity  of  redemption  of  the  said  parties  of  the 
first  part,  their  heirs,  executors,  administrators,  or  assigns  therein, 
at  public  auction,  according  to  the  act  in  such  case  made  and  pro- 
vided. And  as  the  attorney  of  the  said  parties  of  the  first  part,  for 
that  purpose  by  these  presents  duly  authorized,  constituted,  and  ap- 
pointed to  make  and  deliver  to  the  purchaser  or  purchasers  thereof 
a  good  and  sufficient  deed  or  deeds  of  conveyance  in  the  law  for 
the  same,  in  fee-simple,  and  out  of  the  money  arising  from  such  sale 
to  retain  the  principle  and  interest  which  shall  then  be  due  on  the 
said  bond  or  obligation,  together  with  the  costs  and  charges  of  ad- 
vertisement and  sale  of  the  said  premises,  rendering  the  overplus 
of  the  purchase-money  [if  any  there  shall  be]  unto  the  said  A  B, 
party  of  the  first  part,  his  heirs,  executors,  administrators,  or  as- 
signs, which  sale,  so  to  be  made,  shall  forever  be  a  perpetual  bar, 
both  in  law  and  equity,  against  the  said  parties  of  the  first  part, 
their  heirs  and  assigns,  and  all  other  persons  claiming  or  to  claim 
the  premises,  or  any  part  thereof,  by,  from,  or  under  him,  them,  or 
either  of  them.  [If  an  insurance  clause  is  desired,  insert  the  fol- 
lowing:  And  it  is  expressly  agreed,  by  and  between  the  parties 
hereto,  that  the  said  A  B  will  keep  the  buildings,  erected  and  to  be 
erected  upon  the  lands  herein  described,  insured  against  loss  and 
damage  by  fire,  by  insurers,  in  an  amount  of  at  least  five  thousand 

dollars,  and  assign  the  policy  and  renewals  thereof  to  the  said , 

and  in  default  thereof,  it  shall  be  lawful  for  the  said to  effect 

such  insurance,  and  the  premium  and  premiums  paid  for  effecting 
the  same  shall  be  a  lien  on  the  said  mortgaged  premises,  added  to 
the  amount  secured  by  these  presents,  and  payable  on  demand,  with 
interest  at  the  rate  of  seven  per  cent,  per  annum.] 

In  witness  whereof,  the  parties  of  the  first  part  to  these  presents 


282  LEGAL    INSTRUMENTS. 

have  hereunto  set  their  hands  and  seals,  the  day  and  year  first  above 

written.  A B .  [Seal.'] 

C D .  [&JOJ.J 

Sealed  and  delivered  in  the  presence  of  . 

[In  case  the  mortgage  be  given  to  secure  part  of  the  purchase- 
money  of  the  premises,  the  wife  of  the  mortgagor  need  not  join  in 
its  execution,  as  her  interest  is  secondary  to  that  of  a  purchase- 
money  mortgage.] 


171.  Mortgage  in  use  in  California. 

This  indenture,  made  the day  of  ,  in  the  year,  of  our 

Lord  one  thousand  eight  hundred  and  seventy ,  between , 

party   of  the  first  part,  and ,  the  party  of  the  second  part, 

W itnesseth :  That  the  said  party  of  the  first  part,  for  and  in  consid- 
eration of  the  sum  of dollars, of  the  United  States  of 

America,  to  him  in  hand  paid,  does  by  these  presents  grant,  bargain, 
sell,  convey,  and  confirm  unto  the  said  party  of  the  second  part, 
and  to  his  heirs  and  assigns  forever,  all  that  certain  piece  or  parcel 

of  land  situate  in  the ,  county  of ,  State  of ,  bounded 

and  described  as  follows  :  ,  \_here  give  description  ofpropert\j\ 

together  with  all  and  singular  the  tenements,  hereditaments,  and 
appurtenances  thereunto  belonging,  or  in  anywise  appertaining. 
This  conveyance  is  intended  as  a  mortgage  to  secure  the  payment 

of ,  and  all  these  presents  shall  be  void  if  such  payment  be 

made  (according  to  the  tenor  and  effect  thereof).  But  in  case  de- 
fault be  made  in  the  payment  of  the  principal  or  interest  as 

provided,  then  the  said  party  of  the  second  part,  his  executors,  ad- 
ministrators, and  assigns,  are  hereby  empowered  to  sell  the  said 
premises,  with  all  and  every  of  the  appurtenances,  or  any  part 
thereof,  in  the  manner  prescribed  by  law,  and,  out  of  the  money 
arising  from  such  sale,  to  retain  the  said  principal  and  interest, 
together  with  the  costs  and  charges  of  making  such  sale,  and  — 
per  cent,  for  attorney's  fees,  and  the  overplus,  if  any  there  be, 
shall  be  paid  by  the  party  making  such  sale,  on  demand,  to  the 
said  party  of  the  first  part,  his  heirs  or  assigns. 

In  witness  whereof,  the  said  party  of  the  first  part  hath  hereunto 
set  his  hand  and  seal,  the  day  and  year  first  above  written. 

.  [Seal] 

.  [Seal.} 

Signed,  sealed,  and  delivered  in  the 
presence  of . 


172.  Mortgage,  Illinois  form. 

This  indenture,  made  this day  of ,  in  the  year  of  our 

Lord  one  thousand  eight  hundred  and  seventy ,  between . 


LEGAL   INSTRUMENTS.  283 

of  the ,  party  of  the  first  part,  and ,  of  the ,  party  of 

the  second  part,  Witnesseth  :  That  whereas  the  said is  justly 

indebted  unto  the  party  of  the  second  part  in  the  sum  of dol- 
lars, and,  as  evidence  of  which,  the  said has  executed  and  de- 
livered to  the  said  party  of  the  second  part,  certain  promissory 
notes,  bearing  even  date  herewith,  payable  to  the  order  of  the  said 
party  of  the  second  part,  as  follows,  to  wit :  \here  give  amount  and 
description  of  notes  or  other  security"].  And  whereas,  the  said 
party  of  the  first  part,  in  consideration  of  the  premises,  and  for  the 
purposes  aforesaid,  and  in  further  consideration  of  one  dollar,  to 
him  in  hand  paid,  does  hereby  grant,  bargain,  sell,  and  convey,  unto 
the  said  party  of  the  second  part,  his  heirs  and  assigns,  all  the  fol- 
lowing described  lands  and  premises,  situated  in  the ,  county  of 

— ,  and  State  of  Illinois,  to  wit :  \Jiere  give  a  full  description  of 
the  property}.  To  have  and  to  hold  the  same,  together  with  all  and 
singular  the  tenements,  hereditaments,  privileges,  and  appurte- 
nances thereto  belonging,  to  the  said  party  of  the  second  part,  his 
heirs  and  assigns,  to  their  sole  use  and  benefit  forever.  Pro- 
vided always,  and  these  presents  are  upon  this  express  condition, 
that  if  the  party  of  the  first  part,  his  heirs,  executors,  admin- 
istrators, or  assigns,  shall  well  and  truly  pay  or  cause  to  be  paid  to 
the  party  of  the  second  part,  his  heirs,  executors,  administrators, 
or  assigns,  the  promissory  notes,  interest,  and  moneys  herein  secured 
to  be  paid,  at  the  time  and  in  the  manner  specified  in  said  promis- 
sory notes,  and  in  the  covenants  herein  contained,  according  to  the 
true  intent  and  meaning  thereof,  then,  and  in  that  case,  these  pres- 
ents shall  be  and  become  absolutely  null  and  void. 

But  it  is  further  provided  and  agreed,  that  if  default  shall  be 
made  in  the  payment  of  either  of  the  indebtedness  or  moneys  afore- 
said, secured  by  this  instrument,  whether  for  principal  or  interest, 
on  the  day  on  which  the  same,  or  either  thereof,  shall  become  due 
and  payable,  then  this  mortgage  may  thereupon,  at  any  time,  be 
foreclosed,  for  the  payment  or  satisfaction  of  the  whole  of  the  in- 
debtedness and  moneys  aforesaid;  and  said  foreclosure  may  be 
either  by  judicial  proceedings,  or  the  party  of  the  second  part,  his 
heirs,  executors,  administrators,  or  assigns,  either  in  person  or  by 
his  or  their  attorney,  may  sell  and  dispose  of  the  said  premises,  and 
all  the  right,  title,  benefit,  and  equity  of  redemption  of  said  party  of 
the  first  part,  his  heirs  or  assigns  therein,  at  public  auction,  at  either 
door  of  any  building  which  may  be  occupied  as  a  court-house,  in 

the  city  of  ,  in  the  State  of  Illinois,  or  on  said  premises,  as 

may  be  specified  in  the  notice  of  such  sale,  for  the  highest  and  best 

price  the  same  will  bring  in  cash,  at  least days'  public  notice 

having  been  previously  given  of  the  time  and  place  of  such  sale, 
by  advertisement  in  one  of  the  newspapers  at  that  time  published 
in  said  city  of  ,  and,  either  in  person  or  by  attorney,  make,  ex- 
ecute, and  deliver,  to  the  purchaser  or  purchasers  at  such  sale,  good 
and  sufficient  deed  or  deeds  of  conveyance  for  the  premises  sold ; 
and  out  of  the  proceeds  or  avails  of  such  sale,  and  the  purchase- 
money  paid  thereon,  after  paying  all  costs  of  such  advertising  and 
sale,  including  all  moneys  advanced  for  insurance,  taxes,  and  assess- 


284  LEGAL  INSTRUMENTS. 

mcnts,  or  other  liens,  with  the  interest  thereon,  to  pay  the  principal 
of  said  notes,  whether  due  and  payable  by  the  terms  thereof  or  not, 
and  the  interest  due  or  accrued  on  said  notes  up  to  the  time  of  such 
sale,  rendering  the  overplus  [if  any]  unto  the  said  party  of  the  first 
part,  his  legal  representatives  or  assigns,  on  reasonable  request ; 
and  it  shall  not  be  obligatory  upon  the  purchaser  or  purchasers  at 
any  such  sale  to  see  to  the  application  of  the  purchase-money ; 
which  sale  or  sales,  so  made,  shall  be  a  perpetual  bar,  both  in  law 
and  equity,  against  the  said  party  of  the  first  part,  his  heirs  and 
assigns,  and  all  other  persons  claiming  the  premises  aforesaid,  or 
any  part  thereof,  by,  from,  through,  or  under  said  party  of  the  first 
part,  or  any  of  them. 

And  in  addition  to  the  efficacy  which  such  deed  or  deeds  of  con- 
veyance might  otherwise  have  in  evidence  as  a  muniment  or  muni- 
ments of  title,  [and  not  limitation  or  restriction  of  such  efficacy] 
such  deed  or  deeds  shall  also,  as  against  the  party  of  the  first  part, 
his  heirs  and  assigns,  and  in  favor  of  the  party  of  the  second  part, 
his  heirs  and  assigns,  or  the  grantee  or  grantees  named  in  such  deed 
or  deeds,  his  or  their  heirs  and  assigns,  when  produced  in  any 
Court  of  Law  or  Equity,  or  elsewhere,  be  and  be  taken  as  good  and 
sufficient  prima  facie  evidence  of  the  due  and  legal  execution,  in  all 
respects,  of  the  power  of  sale  above  granted,  and  of  the  due  ob- 
servance of  all  preliminaries  and  conditions  necessary  to  the 
validity  of  such  sale,  and  of  such  deed  or  deeds,  whether  such 
observance  thereof  shall  be  in  such  deed  or  deeds  especially  or  in 
detail  recited  or  not ;  and  any  and  all  recitals  which  shall  be  made 
in  such  deed  or  deeds,  shall,  in  any  Court  of  Law  or  Equity,  or  else- 
where, be  and  be  held  to  be,  as  against  the  party  of  the  first  part, 
his  heirs  and  assigns,  good  and  sufficient  prima  facie  evidence  of 
the  truth  of  the  matters  and  things  therein  recited. 

The  said  party  of  the  first  part  hereby  covenants,  declares,  and 
agrees,  that  in  case  default  shall  be  made  in  the  payment  of  any 
or  either  of  the  indebtedness  or  moneys  aforesaid,  whether  for 
principal  or  interest,  or  ot  the  taxes  hereinafter  mentioned,  on  the 
day  on  which  the  same,  or  either  thereof,  shall  become  due  and 
payable,  or  in  the  procuring,  assigning,  and  deposing  of  the  poli- 
cies of  insurance,  as  is  hereinafter  specified,  then  all  and  each  of 
the  moneys  secured  to  be  paid  by  this  indenture  shall,  upon  any 
such  default,  become  immediately  due  and  payable,  anything  here- 
in, or  in  said  promissory  notes  contained,  to  the  contrary  notwith- 
standing. 

And  the  said  party  of  the  first  part,  for  the  purpose  of  enabling 
said  party  of  the  second  part  to  make  an  advantageous  and  judi- 
cious sale  of  said  premises,  does  hereby  authorize  and  empower  him 
to  adjourn  said  sale  from  time  to  time,  at  the  discretion  of  said 
party  of  the  second  part ;  and  also  to  sell  said  premises  entire,  with- 
out division,  or  in  parcels,  as  the  said  party  of  the  second  part  may 
think  best. 

And  the  said ,  party  of  the  first  part,  hereby  expressly  waives 

and  releases  any  and  all  rights  in  respect  to  the  above  granted 
lands,  to  him  secured  by  the  statutes  of  the  said  State  of  Illinois 
relating  to  the  alienation  and  exemption  of  homesteads. 


LEGAL   INSTRUMENTS.  285 

And  the  said ,  for  himself  and  his  heirs,  exe'cutors,  and  ad- 
ministrators, covenants  and  agrees  to  and  with  the  said  party  of 
the  second  part,  and  his  heirs  and  assigns,  that  at  the  time  of  the 
en  Dealing  and  delivery  of  these  presents  he  was  well  seized  of  said 
j  (remises  in  fee-simple,  and  has  good  right,  full  power,  and  lawful 
authority  to  grant,  bargain,  sell,  and  convey  the  same  in  manner 
and  form  as  aforesaid ;  that  the  same  are  free  and  clear  of  all  liens 
and  incumbrances  whatsoever ;  that  the  said  party  of  the  first  part 
will,  in  due  season,  pay  all  taxes  and  assessments  on  said  premises, 
and  exhibit  once  a  year,  on  demand,  to  said  party  of  the  second 
part,  receipts  of  the  proper  persons,  showing  payment  thereof, 
until  the  indebtedness  aforesaid  shall  be  fully  paid ;  and  will  keep 
sill  buildings  that  may  at  any  time  be  on  said  premises,  during  the 
continuance  of  said  indebtedness,  insured  in  such  company  or  com- 
panies as  the  party  of  the  second  part,  his  heirs,  executors,  admin- 
istrators, and  assigns,  may  direct,  for  such  sum  or  sums  as  such 
company  or  companies  will  insure  for,  not  to  exceed  the  amount  of 

—  dollars,  and  will  assign,  with  proper  consent  of  the  insurers, 
the  policy  or  policies  of  insurance  to,  and  deposit  the  same  with, 
said  party  of  the  second  part,  as  further  security  for  the  indebted- 
ness aforesaid  ;  and  in  case  said  party  of  the  first  part  shall  fail  so 
to  keep  said  buildings  insured,  and  to  pay  said  taxes  and  assess- 
ments, then  the  party  of  the  second  part  shall  have  full  right, 
power,  and  authority  to  pay  the  same,  and  the  amount  so  paid  shall 
constitute  a  part  of  the  debt  secured  by  this  instrument,  and  upon 
sale  of  the  land  hereunder,  shall,  with  the  amount  of  said  notes 
and  interest,  be  paid  to  the  party  of  the  second  part,  his  heirs,  ex- 
ecutors, administrators,  and  assigns,  with  interest  thereon  at  the 
rate  of per  cent,  per  annum. 

A  reconveyance  of  said  premises  shall  be  made  to  said  party  of 
the  first  part,  his  heirs  or  assigns,  at  his  expense,  on  full  payment  of 
the  indebtedness  aforesaid,  and  full  performance  by  them  of  the 
covenants  and  agreements  herein  made  by  the  party  of  the  first 
part. 

In  witness  whereof,  the  party  of  the  first  part  has  hereunto  set 
his  hand  and  seal,  on  the  day  and  year  first  above  written. 

.  [Seal.] 

.  [Seal'] 

Signed,  sealed,  and  delivered  in 
the  presence  of . 


173.  Mortgage  with  dower,  Ohio  form. 

Know  all  men  by  these  presents,  that ,  and ,  his  wife,  of 

the ,  in  consideration  of dollars,  to  them  paid  by of 

the ,  the  receipt  whereof  is  hereby  acknowledged,  do  hereby 

grant,  bargain,  sell,  and  convey  to  the  said  ,  his  heirs  and 

assigns  forever, ,  [here  give  full  description  of  property]  and 

all  the  estate,  title,  interest,  of  the  said ,  either  in  law  or  equity, 


286  LEGAL   INSTRUMENTS. 

of,  in,  and  to  the  said  premises,  together  with  all  the  privileges  and 
appurtenances  to  the  same  belonging,  and  all  the  rents,  issues,  and 
profits  thereof.  To  have  and  to  hold  the  same  to  the  only  proper  use 

of  the  said ,  his  heirs  and  assigns  forever.   And  the  said ,  for 

himself  and  for  his  heirs,  executors,  and  administrators,  does  hereby 

covenant  with  the  said ,  his  heirs  and  assigns,  that  he  is  the 

true  and  lawful  owner  of  the  said  premises,  and  has  full  power  to 
convey  the  same,  and  that  the  title  so  conveyed  is  clear,  free,  and 
unincumbered ;  and  fifrther,  that  he  will  warrant  and  defend  the 
same  against  all  claim  or  claims  of  all  persons  whomsoever. 

Provided,  nevertheless,  that  the  said shall  perform  fully  the 

condition  of  his  certain  bond  of  even  date  herewith,  given  to  the 

said ,  [or  pay  unto  the  said  the  amount  of  two  certain 

promissory  notes,  dated ,  and  respectively  for  the  amount  of 

dollars]  then  these  presents  shall  be  void. 

In  witness  whereof,  the  said  ,  and  the  said  ,  his  wife, 

hereby  releasing  her  right  and  expectancy  of  dower  in  the   said 

premises,  have  hereunto  set  their  hands  and  seals,  this day  of 

,  in  the  year  of  our  Lord  one  thousand  eight  hundred  and 

seventy .  .  [/Sea?.] 

.  [Seal] 

Signed,  sealed,  and  acknowledged  in 
presence  of  us, . 


174.  Mortgage,  Michigan  form. 

This  indenture,  made  this day  of  ,  in  the  year  of  our 

Lord   one   thousand   eight  hundred   and  seventy  ,   between 

,  party  of  the  first  part,  and  ,  party  of  the  second  part, 

Witnesseth:  That  the   said   party   of  the  first  part,   for   and   in 

consideration  of  the  sum  of  dollars,  to  him  in  hand  paid  by 

the  said  party  of  the  second  part,  the  receipt  whereof  is  hereby 
confessed  and  acknowledged,  has  granted,  bargained,  sold,  remised, 
released,  enfeoffed,  and  confirmed,  and  by  these  presents  does  grant, 
bargain,  sell,  remise,  release,  enfeoff,  and  confirm  unto  the  said 
party  of  the  second  part,  and  to  his  heirs  and  assigns  f orever,_  all 
[here  give  full  description  of  property} :  together  witli  the  here- 
ditaments and  appurtenances  thereunto  belonging,  or  in  anywise 
appertaining.  To  have  and  to  hold  the  above  bargained  premises 
unto  the  said  party  of  the  second  part,  and  to  his  heirs  and  as- 
signs, to  the  sole  and  only  proper  use,  benefit,  and  behoof  of  the 
said  party  of  the  second  part,  his  heirs  and  assigns,  forever ;  and  the 
said  party  of  the  first  part,  for  himself,  and  for  his  heirs,  executors, 
and  administrators,  doth  covenant,  grant,  bargain,  and  agree  to  and 
with  the  said  party  of  the  second  part,  his  heirs  and  assigns,  that 
at  the  time  of  the  ensealing  and  delivery  of  these  presents  he  was 
well  seized  of  said  premises  in  fee-simple ;  that  they  are  free  from 
all  incumbrances  and  charges  whatever,  and  that  he  will,  and  his 
heirs,  executors,  administrators,  and  assigns  shall  forever  warrant 


LEGAL    INSTRUMENTS.  287 

and  defend  the  same  against  all  lawful  claims  whatsoever.  Provided 
always,  and  these  presents  are  upon  the  express  condition,  that  if 
the  said  party  of  the  first  part  shall,  arid  do,  well  and  truly  pay, 
or  cause  to  be  paid,  to  the  said  party  of  the  second  part  the  sum 
of  five  thousand  dollars,  lawful  money  of  the  United  States,  accord- 
ing to  a  certain  bond,  bearing  even  date  herewith,  executed  by 

,  the  party  of  the  first  part,  to  said  party  of  the  second 

part,  to  which  these  presents  are  collateral :  and  shall  also  pay,  or 
cause  to  be  paid,  all  taxes  and  assessments,  of  whatever  nature, 
which  may  be  levied  upon  said  premises  above  described,  as  soon 
and  as  often  as  the  same  may  become  due  and  payable. 

And  the  said  first  party  doth  hereby  covenant  and  promise  to  and 
with  said  second  party,  his  representatives  and  assigns,  that  he, 
the  said  first  party,  will  pay  to  said  second  party  the  full  sum  of 
five  thousand  dollars,  with  interest  as  above  provided. 

And  it  is  also  agreed,  by  and  between  the  parties  to  these  pres- 
ents, that  the  said  party  of  the  first  part  shall  and  will  keep  the 
buildings,  erected  and  to  be  erected,  upon  the  lands  above  con- 
voyed, insured  against  loss  and  damage  by  fire,  by  insurers,  and  in 
amount  approved  by  the  said  party  of  the  second  part,  and  assign 
the  policy  and  certificates  thereof  to  the  said  party  of  the  second 
part ;  and  in  default  thereof,  it  shall  be  lawful  for  the  said  party  of 
the  second  part  to  effect  such  insurance,  and  the  premium  and 
premiums  paid  for  effecting  the  same  shall  be  a  lien  on  the  said 
mortgaged  premises,  added  to  the  amount  secured  by  these  pres- 
ents, and  payable  on  demand,  with  interest,  at  the  rate  of  ten  per 
cent  per  annum.  And  shall  further  keep  and  perform  all  covenants 
and  agreements  hereinafter  made,  then  these  presents  and  said  bond 
shiJl  cease  and  be  null  and  void. 

And  it  is  hereby  expressly  agreed,  that  should  any  default  be 
made  in  the  payment  of  the  said  interest,  taxes,  assessments,  or  in- 
surance, or  any  part  thereof,  on  any  day  whereon  the  same  is  made 
payable,  as  above  expressed,  and  should  the  same  remain  unpaid 
and  in  arrear  for  the  space  of  thirty  days,  then  and  from  thence- 
forth, that  is  to  say,  after  the  lapse  of  the  said  thirty  days,  the 
aforesaid  principal  sum  of  five  thousand  dollars,  with  all  arrearage 
of  interest  thereon,  and  all  taxes,  assessments,  and  insurance  unpaid, 
shall,  at  the  option  of  said  obligee,  his  executors,  administrators,  or 
assigns,  become  and  be  due  and  payable  immediately  thereafter, 
although  the  period  above  limited  for  the  payment  thereof  may  not 
then  have  expired,  anything  thereinbefore  contained  to  the  contrary 
thereof  in  anywise  notwithstanding. 

And  it  is  further  expressly  agreed,  that  as  often  as  any  proceeding 
is  taken  to  foreclose  this  mortgage,  as  hereinafter  provided,  or 

in  chancery,  said  first  party  shall  pay  to  said  second  party 

dollars,  as  a  reasonable  attorney  or  solicitor's  fee  therefor,  in  addi- 
tion to  all  other  legal  costs. 

And  upon  default  being  made  in  any  condition  of  this  mortgage, 
or  in  case  of  the  non-payment  of  the  said  sum  of  five  thousand 
dollars,  or  of  the  interest  thereof,  or  of  said  taxes,  assessments,  or 
insurance,  or  any  part  of  said  principal  or  interest,  taxes,  assess- 


288  LEGAL   INSTRUMENTS. 

ments,  or  insurance,  or  if  the  principal  becomes  due  and  payable, 
as  aforesaid,  by  reason  of  the  non-payment  of  interest,  taxes,  assess- 
ment, or  insurance,  at  the  time,  in  the  manner,  and  at  the  place 
above  limited  and  specified  for  the  payment  thereof,  then  and  in 
such  case  it  shall  and  may  be  lawful  for  the  said  party  of  the  second 
part,  his  heirs,  executors,  administrators,  or  assigns,  and  the  said 
party  of  the  first  part  doth  hereby  empower  and  authorize  the  said 
party  of  the  second  part,  his  heirs,  executors,  administrators,  or 
assigns,  to  grant,  bargain,  sell,  release,  and  convey  the  said  prem- 
ises, with  the  appurtenances,  at  public  vendue,  and  on  such  sale  to 
make  and  execute  to  the  purchaser  or  purchasers,  his,  her,  or  their 
heirs  and  assigns  forever,  good,  ample,  and  sufficient  deed  or  deeds 
of  conveyance  in  law,  pursuant  to  the  statute  in  such  case  made 
and  provided,  rendering  the  surplus  moneys  (if  any  there  should 
be)  to  the  said  party  of  the  first  part,  his  heirs,  executors,  or  admin- 
istrators, after  deducting  the  amount  then  due,  the  said  attorney 
or  solicitor's  fee,  and  the  costs  and  charges  of  such  vendue  and  sale 
aforesaid. 

In  witness  whereof,  the  party  of  the  first  hath  hereunto  set  his 
hand  and  seal,  the  day  and  year  first  above  written. 

.  [Seal.] 

.  [Seal] 

Signed,  sealed,  and  delivered  in 
presence  of . 


175.  Mortgage,  short  form,  for  State  of  Indiana. 

This  indenture  witnesseth  that ,  of County,  in  the  State 

of ,  mortgages  and  warrants  to  ,  of  County,  in  the 

State  of ,  the  following  real  estate  in County,  in  the  State 

of ,  to  wit :  \Jiere  give  description  of  property]  to  secure  the 

payment,  when  it  becomes  due,  of dollars,  being  the  unpaid 

balance  of  the  purchase-money  for  the  above-described  real  estate  ; 
and  the  mortgagor  expressly  agrees  to  pay  the  sum  of  money  above 
secured  without  relief  from  valuation  or  appraisement  laws. 

In  witness  whereof,  the  mortgagor  hath  hereunto  set  his  hand 

and  seal,  this day  of ,  187 . 

.  [Seal.] 


176.  Assignment  of  mortgage — New  York  form. 

Know  all  men  by  these  presents,  that  I, ,  of  the  city  of , 

county  of  ,  and  State  of  New  York,  party  of  the  first  part,  in 

consideration  of  the  sum  of  five  thousand  dollars,  lawful  money  of 

the  United  States,  to  me  in  hand  paid  by ,  of  the  city  of , 

county  of ,  and  State  of  New  York,  party  of  the  second  part, 

at  or  before  the  ensealing  of  these  presents,  the  receipt  whereof  is 
hereby  acknowledged,  have  granted,  bargained,  sold,  assigned, 
transferred,  and  set  over,  and  by  these  presents  do  grant,  bargain, 


LEGAL   INSTRUMENTS.  289 

sell,  assign,  transfer,  and  set  over  unto  the  said  party  of  the  second 
part,  a  certain  indenture  of  mortgage,  bearing  date  the  first  day  of 

March,  one  thousand  eight  hundred  and  seventy-five,  made  by 

and ,  his  wife,  of  the  city  of  New  York,  to  me,  to  secure  the 

payment  of  five  thousand  dollars  and  interest,  and  which  said 
mortgage  was  recorded  in  the  office  of  the  register  of  the  city  and 
county  of  New  York,  on  March  2d,  1875,  in  liber  100  of  mort- 
gages, at  page  100,  [if  there  have  been  previous  assignments,  recite 
names,  dates,  and  records]  together  with  the  bond  or  obligation 
therein  described,  and  the  money  due  and  to  grow  due  thereon, 
with  the  interest.  To  have  and  to  hold  the  same,  unto  the  said 
party  of  the  second  part,  his  executors,  administrators,  and  assigns, 
forever,  subject  only  to  the  proviso  in  the  said  indenture  of  mort- 
gage mentioned,  and  I  do  hereby  make,  constitute,  and  appoint  the 
said  party  of  the  second  part  my  true  and  lawful  attorney,  irrevo- 
cable in  my  name,  or  otherwise,  but  at  his  proper  costs  and  charges, 
to  have,  use,  and  take  all  lawful  ways  and  means  for  the  recovery 
of  the  said  money  and  interest ;  and  in  case  of  payment,  to  dis- 
charge the  same  as  fully  as  I  might  or  could  do  if  these  presents 
were  not  made. 

In  witness  whereof,  I,  the  said  party  of  the  first  part,  have  here- 
unto set  my  hand  and  seal  this  first  day  of  July,  one  thousand  eight 
hundred  and  seventy . 

In  the  presence  of  . 


117.  Assignment  of  mortgage —  California  form. 

Know  all  men  by  these  presents,  that ,  of  the ,  county 

of  ,  State  of  California,  the  party  of  the  first  part,  in  consid- 
eration of  the  sum  of  dollars,  lawful  money  of  the  United 

States  of  America,  to  him  in  hand  paid  by ,  of ,  the  party 

of  the  second  part,  the  receipt  whereof  is  hereby  acknowledged, 
does  by  these  presents  grant,  bargain,  sell,  assign,  transfer,  and  set 
over,  unto  the  said  party  of  the  second  part,  a  certain  indenture  of 

mortgage,  bearing  date  the  day  of  ,  one  thousand  eight 

hundred  and  seventy ,  made  and  executed  by and  , 

his  wife,  to  the  said  party  of  the  first  part,  and  recorded  in  the  of- 

lice  of  the  County  Recorder  of  County,  State  of  California, 

iu  book of  mortgages,  page ,  on  the day  of  ,  A. 

r>.  187 ,  at  o'clock,  in  the  noon  ;  together  with  the 

promissory  note  [or  bond]  therein  described,  and  the  money  due 
arid  to  grow  due  thereon,  with  the  interest.  To  have  and  to  hold 
the  same  unto  the  said  party  of  the  second  part,  his  executors,  ad- 
ministrators, and  assigns,  for  their  use  and  benefit ;  subject  only  to 
the  proviso  in  the  said  indenture  of  mortgage  mentioned.  And  the 
said  party  of  the  first  part  does  hereby  make,  constitute,  and  ap- 
point the  said  party  of  the  second  part  his  true  and  lawful  attor- 
ney, irrevocable  in  his  name  or  otherwise,  but  at  the  proper  costs 
and  charges  of  the  said  party  of  the  second  part,  to  have,  use,  and 

NOTARIES — 19. 


290  LEGAL    INSTRUMENTS. 

take  all  lawful  ways  and  means  for  the  recovery  of  the  said  money 
and  interest;  and  in  case  of  payment,  to  discharge  the  same  as 
fully  as  the  said  party  of  the  first  part  might  or  could  do  if  these 
presents  were  not  made. 

In  witness  whereof,  the  said  party  of  the  first  part  has  hereunto 

set  his  hand  and  seal,  the day  of ,  in  the  year  of  our  Lord 

one  thousand  eight  hundred  and  seventy . 

.  [Seal] 

Signed,  sealed,  and  delivered  in  the 
presence  of . 


178.  Assignment  of  mortgage — Illinois  form. 

Know  all  men  by  these  presents,  that  ,  party  of  the  first 

part,  in  consideration  of  the  sum  of  dollars,  lawful  money  of 

the  United  States,  to  him  in  hand  paid  by ,  party  of  the  second 

part,  at  or  before  the  ensealing  and  delivery  of  these  presents,  the 
receipt  whereof  is  hereby  acknowledged,  has  granted,  bargained, 
sold,  assigned,  transferred  and  set  over,  and  by  these  presents  does 
grant,  bargain,  sell,  assign,  transfer,  and  set  over  unto  the  said 
party  of  the  second  part,  a  certain  indenture  of  mortgage,  bearing 

date  the day  of  ,  one  thousand  eight  hundred  and  seventy 

,  made  by ,  and  recorded  in  the office  of  the  county 

of  ,  in  liber of  mortgages,  at  page ;   together  with 

the  bond  [or  note]  therein  described,  and  the  money  due  and  to 
grow  due  thereon,  with  the  interest.  To  have  and  to  hold  the  same 
unto  the  said  party  of  the  second  part,  his  heirs  and  assigns,  for- 
ever ;  subject  only  to  the  proviso  in  the  said  indenture  of  mortgage 
mentioned.  And  I  do  hereby  make,  constitute,  and  appoint  the 
said  party  of  the  second  part  my  true  and  lawful  attorney,  irrevoc- 
ably, in  my  name  or  otherwise,  but  at  his  proper  costs  and  charges, 
to  have,  use,  and  take  all  lawful  ways  and  means  for  the  recovery 
of  the  said  money  and  interest ;  and  in  case  of  payment,  to  dis- 
charge the  same  as  fully  as  I  might  or  could  do  if  these  presents 
were  not  made.  [If  a  covenant  as  to  the  amount  due  on  said  mort- 
gage is  required,  it  may  be  inserted  here.] 

In  witness  whereof,  I  have  hereunto  set  my  hand  and  seal,  the 

day  of  ,  one  thousand  eight  hundred  and  seventy . 

.  [Seal.'] 

Signed,  sealed,  and  delivered  in  the 
presence  of . 


179.  Release  of  part  of  mortgaged  premises. 

This  indenture,  made  this  day  of  ,  in  the  year  one 

thousand  eight  hundred  and  seventy ,  between ,  party  of 

the  first  part,  and ,  party  of  the  second  part:    Whereas, , 

by  indenture  of  mortgage  bearing  date  the day  of ,  one 

thousand  eight  hundred  and  seventy ,  for  the  consideration 


LEGAL   INSTRUMENTS.  291 

therein  mentioned,  and  to  secure  the  payment  of  the* money  therein 
specified,  did  convey  certain  lands  and  tenements,  of  which  the 

lands  hereinafter  described  are  part,  unto ,  party  hereto  of  the 

first  part,  which  said  mortgage  was  recorded  in  the  office  of  the 

clerk  [or  recorder]  of  the  county  of  ,  on  the day  of  — ^— , 

187 ,  in  book of  mortgages,  at  page .     And  whereas, 

the  said  party  of  the  first  part,  at  the  request  of  the  said  party  of 
the  second  part,  has  agreed  to  give  up  and  surrender  the  lands  here- 
inafter described  unto  the  said  party  of  the  second  part,  and  to 
hold  and  retain  the  residue  of  the  said  mortgaged  lands  as  security 
for  the  money  remaining  due  on  the  said  mortgage,  now  this  inden- 
ture Witnesseth :  That  the  said  party  of  the  first  part,  in  pursuance 
of  said  agreement,  and  in  consideration  of  one  dollar  to  him  duly 
paid  at  the  time  of  the  ensealing  and  delivery  of  these  presents, 
the  receipt  whereof  is  hereby  acknowledged,  hath  granted,  released, 
quitclaimed,  and  set  over,  and  by  these  presents  doth  grant,  release, 
quitclaim,  and  set  over  unto  the  said  party  of  the  second  part,  all 
that  part  of  the  said  mortgaged  land  bounded  and  described  as 
follows :  [here  insert  description  of  released  premises]  together  with 
the  hereditaments  and  appurtenances  thereunto  belonging ;  and  all 
the  right,  title,  and  interest  of  the  said  party  of  the  first  part,  of, 
in,  and  to  the  same,  to  the  intent  that  the  lands  hereby  conveyed 
may  be  discharged  from  the  said  mortgage,  and  that  the  rest  of  the 
lands  in  the  said  mortgage  specified  may  remain  to  the  said  party 
of  the  first  part  as  heretofore.  To  have  and  to  hold  the  land  and 
premises  hereby  released  and  conveyed,  to  the  said  party  of  the 
second  part,  his  heirs  and  assigns,  to  his  and  their  only  proper  use, 
benefit,  and  behoof,  forever,  free,  clear,  and  discharged  from  all  lien 
and  claim,  under  and  by  the  virtue  of  the  indenture  of  mortgage 
aforesaid. 

In  witness  whereof,  the  party  of  the  first  part  hath  hereunto  set 
his  hand  and  seal,  the  day  and  year  above  written. 

.  [Seal.'] 

Sealed  and  delivered  in  the 
presence  of . 


180.  Satisfaction  of  mortgage,  New  York  form. 

STATE  OF  NEW  YOEK,  ) 
County  of  New  York,     ) 

I, ,  of  the  city,  county,  and  State  of  New  York,  do  hereby 

certify  that  a  certain  indenture  of  mortgage,  bearing  date  the 

day  of ,  in  the  year  one  thousand  eight  hundred  and  seventy 

,  made  and  executed  by and  ,  his  wife,  to  me,  to 

secure  the  payment  of dollars  and  interest,  and  recorded  in 

the  office  of  the  register  of  the  county  of  New  York,  in  liber 

of  mortgages,  page ,  on  the day  of  ,  in  the  year  one 

thousand  eight  hundred  and  seventy ,  at  o'clock  in  the 


292  ,  LEGAL   INSTRUMENTS. 


noon,  is  paid,  and  I -do  hereby  consent  that  the  same  be  dis- 


charged of  record. 
,     Dated  the day  of ,  187 

Signed  and  delivered  in  the 

,  presence  of . 

[An  acknowledgment  should  be  added.  This  form  may  be  used 
for  the  satisfaction  of  a  chattel  mortgage,  by  using  the  word 
"filed,"  instead  of  J'  recorded,"  and  giving  the  date  of  tiling.] 


181.  /Satisfaction  of  mortgage,   California  form. 

Know  all  menNby  these  presents,"  that  I, ,  do  hereby  certify 

and  declare  that  a  certain  mortgage,  bearing  date  the day 

of ,  187 ,-made  and  executed  by ,  the  party  of  the  first 

part  therein,  to ,  the  party  of  the  second  part  therein,  and , 

recorded  in  the  office-  of  the  county  recorder  of  the ,  county 

of -,  in  book of  mortgages,  on  page ,  on  the day 

of ,  187 ,  together  with  the  debt  thereby  secured,  is  fully 

paid,  satisfied,  and  discharged. 

In   witness  whereof,  I   have   hereunto   set   my  hand  and  seal, 

the day  of ,  one  thousand  eight  hundred  and  seventy . 

.  [Seal.~\ 

.  \_Seal.~] 

Signed,  sealed,  and  delivered  in  the 
presence  of . 

[Add  acknowledgment.] 


182.  Satisfaction  of  mortgage,  general  form. 

Know  all  men  by  these  presents,  that  I, ,  of  the ,  of , 

and  State  of ,  do  hereby  certify  that  a  certain  indenture  of 

mortgage,  bearing  date  the day  of  ,  one  thousand  eight 

hundred  and  seventy ,  made  and  executed  by ,  party  of  the 

first  part,  to ,  of  the  second  part,  and  recorded  in  the  office  of 

the  clerk  [or  recorder]  for  the  county  of ,  in  liber of  mort- 
gages, page  ,  on  the  day  of  ,  one  thousand  eight 

hundred  and  seventy ,  is  fully  paid,  satisfied,  and  discharged. 

In  witness  whereof,  I  have  hereunto  set  my  hand  and  seal,  the 

day  of  ,  one  thousand  eight  hundred  and  seventy  . 

.  [Seal.} 

Signed,  sealed,  and  delivered  in  the 
presence  of . 

[Add  proper  acknowledgment.] 


LEGAL    INSTRUMENTS.  293 

183.  Chattel  mortgage  with  danger  clause. 

To  all  to  whom  these  presents  shall  come :  Know  ye  that  I, ,, 

of  the  ,  county  of  ,  and  State  of  ,  party  of  the  first 

part,  for  the  securing  the  payment  of  the  -money  hereinafter  men- 
tioned, and  in  consideration  of  the  sum  of  one  dollar  to  me  duly 

paid  by  ,  of  the  same  place,  party  of  the  second  part,  at  or 

before  the  enseoling  and  delivery  of  these  presents,  the  receipt 
whereof  is  hereby  acknowledged,  have  bargained  and  sold,  and  by 
these  presents  do  grant,  bargain,  and  sell  unto  the  said  party  of  the 

second  part,  [here  describe  the  goods']  now  in  the  premises  No. , 

Street,  in  the  city  of  ,  to  have  and  to  hold,  all  and  singu- 
lar the  goods  and  chattels  above  bargained  and  sold,  or  intended  so 
to  be,  unto  the  said  party  of  the  second  part,  his  executors,  admin- 
istrators, and  assigns  forever.  And  I,  the  said\  party  of  the  first 
part,  for  myself,  my  heirs,  executors,  and  administrators,  all  .and 
singular  the  said  goods  and  chattels  above  bargained  and  sold  unto 
the  said  party  of  the  second  part,  his  heirs,  executors,  administra- 
tors, and  assigns,  against  me,  the  said  party  of  the  first  part,  and 
against  all  and  every  person  or  persons  whomsoever,  shall  and  will 
warrant,  and  forever  defend.  Upon  condition  that  if  I,  the  said 
party  of  the  first  part,  shall  and  do  well  and  truly  pay  unto  the 
said  party  of  the  second  part,  his  executors,  administrators,  or  as- 
signs, the  sum  of  one  thousand  dollars,  with  interest  thereon  from 
, ,^on  or  before  the day  of  — — ,  187j ,  [or  on  de- 
mand] then  these  presents  shall  be  void.  And  I,  the  said  party  of 
the  first  part,  for  myself,  my  executors,  administrators,  and  assigns, 
do  covenant  and  agree  to  and  with  the  said  party  of  the  second 
part,  his  executors,  administrators,  and  assigns,  that  in  case  default 
shall  be  made  in  the  payment  of  the  said  sum  above  mentioned,  or 
should  said  goods  be  sold  or  removed,  or  levied  upon  by  execution 
or  attachment,  that  it  shall  and  may  be  lawful  for,  and  I,  the  said 
party  of  the  first  part,  do  hereby  authorize  and  empower  the  said 
party  of  the  second  part,  his  executors,  administrators,  and  assigns, 
with  the  aid  and  assistance  of  any  person  or  persons,  to  enter  my 
dwelling-house,  store,  and  other  premises,  and  such  other  place  or 
places  as  the  said  goods  or  chattels  are  or  may  be  placed,  and  take 
and  carry  away  the  said  goods  or  chattels,  and  to  sell  and  dispose 
of  the  same  for  the  best  price  they  can  obtain ;  and  out  of  the 
money  arising  therefrom  to  retain  and  pay  the  said  sum  above 
mentioned,  and  all  charges  touching  the  same  ;  rendering  the  over- 
plus [if  any]  unto  me  or  to  my  executors,  administrators,  or  as- 
signs. And  until  default  be  made  in  the  payment  of  the  said  sum 
of  money,  or  said  goods  be  sold,  removed,  or  levied  upon,  I  am  to 
remain  and  continue  in  the  quiet  and  peaceable  possession  of  the 
said  goods  and  chattels,  and  the  full  and  free  enjoyment  of  the 
same. 

In  •witness  whereof,  I,  the  said  party  of  the  first  part,  have  here- 
unto set  my  hand  and  seal  the day  of ,  one  thousand  eight 

hundred  and  seventy .  .  [/Seal.] 

Signed,  sealed,  and  delivered  in  the 
presence  of . 


294  LEGAL    INSTRUMENTS. 

[This  form  is  adapted  for  and  in  use  generally  in  the  Eastern 
States.] 

184.  Chattel  mortgage^  California  form. 

This  mortgage,  made  the  -  day  of  -  ,  in  the  year  A.  D. 
eighteen  hundred  and  seventy  -  ,  by  -  ,  of  the  -  ,  county 
of  -  ,  State  of  -  x  by  occupation  -  ,  mortgagor  to  -  ,  of 
the  -  ,  county  of  -  ,  State  of  -  ,  by  occupation  -  ,  mort- 
gagee -  ,  Witnesseth  :  That  said  mortgagor  mortgages  to  the  said 
mortgagee  all  thut  certain  personal  property  situated  and  described 
us  follows,  to  wit  :  [here  give  a  schedule  or  statement  of  the  prop- 
erty'} as  security  for  the  payment  to  him,  the  said  mortgagee,  of 

-  dollars,  --  of  the  United  States  of  America,  on  --  day  of 

-  ,  in  the  year  of  our  Lord  eighteen  hundred  and  seventy  --  , 
with  interest  thereon  at  the  rate  of  -  per  cent,  per  -  ,  accord- 
ing to  the  terms  and  conditions  of  a  certain  promissory  note,  of  even 
date  herewith,  and  in  the  words  and  figures  following,  to  wit  :  --  . 

--  .  [Seal.] 
--  .  [Seal.\ 
Signed  and  executed  in  the 
presence  of  --  . 


STATE  OF  CALIFORNIA, 


ss. 


County  of 
,  the  mortgagor  in  the  foregoing  mortgage  named,  and 


the  mortgagee  in  said  mortgage  named,  being  duly  sworn,  each  for 
himself,  doth  depose  and  say  :  That  the  aforesaid  mortgage  is  made 
in  good  faith,  and  without  any  design  to  hinder,  delay,  or  defraud 
creditor  or  creditors.  . 


Subscribed  and  sworn,  to  this day  of ,  A.  D.  187 ,  at 

the ,  county  of ,  before  me,  — . 

[By  the  Civil  Code  of  California,  Sec.  2957,  a  mortgage  of  per- 
sonal property  is  void  as  against  creditors  of  the  mortgagor,  and 
subsequent  purchasers  and  iucumbrancers  of  the  property,  in  good 
faith  and  for  value,  unless:  1.  It  is  accompanied  by  the  affidavit  of 
all  the  parties  thereto,  that  it  is  made  in  good  faith,  and  without 
any  design  to  hinder,  delay,  or  defraud  creditors ;  "2.  Unless  it  is 
acknowledged  or  proved,  certified  and  recorded  in  like  manner  as 
grants  of  real  property.  By  Sec.  2955,  Civil  Code,  chattel  mort- 
gages may  be  made  upon  :  First,  Locomotives,  engines,  and  other 
rolling  stock  of  a  railroad;  Second,  Steamboat  machinery,  the 
machinery  used  by  machinists,  foundry-men,  and  mechanics ;  Third, 
Steam-engines  and  boilers;  Fourth,  Mining  machinery;  Fifth, 
Printing-presses  and  material;  Sixth,  Professional  libraries; 
Seventh,  Instruments  of  a  surgeon,  physician,*or  dentist ;  Eighth, 
Upholstery  and  furnifure  used  in  hotels,  lodging  or  boarding- 
houses,  when  mortgaged  to  secure  the  purchase -money  of  the  arti- 


LEGAL    INSTRUMENTS.  295 

cles  mortgaged ;  Ninth,  Growing  crops ;  Tenth,  Vessels  of  more 
than  five  tons  burden  ;  Eleventh,  Instruments,  negatives,  furniture, 
and  fixtures  of  a  photograph  gallery.] 


185.  Chattel  mortgage,  Ohio  form. 

Know  all  men  by  these  presents,  that ,  of  ,  in  consider- 
ation of  one  dollar,  to  him  in  hand  paid,  by ,  of  the ,  the 

receipt  of  which  is  hereby  acknowledged,  doth  hereby  bargain,  sell, 

and  convey  to  the  said ,  and  his  assigns,  the  goods  and  chattels 

described  in  the  schedule  hereto  annexed ;  to  have  and  to  hold  the 

same,  to  the  use  of  the  said  ,  his  executors,  administrators, 

and  assigns.    And  said  mortgagor  covenants  that  he  will  insure 

the  said  property  for  not  less  than dollars,  and  keep  the.  same 

insured  during  the  continuance  of  this  mortgage,  and  if  he  neg- 
lect or  fail  so  to  do,  then  the  mortgagee  may  insure  the  same  at 
the  expense  of  the  mortgagor;  and  in  case  of  loss,  if  any,  payment 
shall  be  made  to  the  mortgagee,  for  the  use  and  purpose  herein 

mentioned.     Provided,  nevertheless,  that  if  the  said shall  pay 

unto  the  said  the  sum  of dollars,  on  the  day  of 

,  187 ,  [or  pay  the  amount  of  a  certain  note,  executed  by 

the  said ,  for ;  or  perform  any  other  condition]  then  this 

conveyance  shall  be  void;  otherwise,  to  be  and  remain  in  full  force. 
The  said  mortgagor  hereby  covenants,  that  on  default  of  payment, 
or  any  sale,  or  attempt  to  sell,  said  goods  or  chattels,  or  any  part 
of  them,  or  to  remove  them,  or  any  part  of  them,  from  the  county, 
or  from  their  location,  or  upon  any  seizure  of  them,  or  any  part  of 
them,  by  any  process  of  law,  or  upon  any  failure  to  comply  with 
the  said  provisions  as  to  insurance,  then  the  said  mortgagee  or  his 
assigns  may  take  them  into  his  possession. 

In  witness  whereof,  the  said has  hereunto  set  his  hand  and 

seal,  this day  of ,  in  the  year  of  our  Lord  one  thousand 

eight  hundred  and  seventy -.  .  [SealJ] 

Signed,  sealed,  and  acknowledged  in 

presence  of  us : . 


[By  the  laws  of  Ohio,  Act  April  llth,  1863,  a  statement  of  the 
debt  or  claim  for  which  the  mortgage  is  given  to-  secure,  must  be 
made  and  sworn  to,  and  appended,  as  follows  :J 

STATE  OP  OHIO,") 
County  of ,  j  Kl 

,  mortgagee,  named  in  this  mortgage,  being  duly  sworn, 

makes  oath  and  says :  That  his  claim  against  ,  the  mortgagor, 

of  which  a  true  statement  is  hereunto  annexed,  amounts  to  the  sum 
of ,  and  that  said  claim  is  just  and  unpaid. . 

Sworn  to  and   subscribed   before   me,  a  in   and  for  said 

county,  this day  of ,  187 


296  LEGAL    INSTKUMENTS. 

1E.6.  Chattel  mortgage,  Illinois  form. 

Know  all  men  by  these  presents,  that  I, ,  of  the  town  of 

-,  in  the  county  of and  State  of  Illinois,  in   consideration 


of  dollars,  to  me  paid  by  ,  of  the   county  of  and 

State  of the   receipt   whereof  is   hereby   acknowledged,  do 

hereby  grant,  bargain,  and  sell,  unto  the  said ,  and  to  his  heirs 

and  assigns  forevei',  the  following  goods  and  chattels,  to  wit :  [he-re 
give  a  schedule  or  statement}.  To  have  and  to  hold,  all  and  singular, 
the  said  goods  and  chattels,  unto  the  said  mortgagee  herein,  and 
his  heirs  and  assigns,  to  their  sole  use  and  behoof,  forever.  And  the 
mortgagor  herein,  for  himself  and  for  his  heirs,  executors,  and  ad- 
ministrators, does  hereby  covenant,  to  and  with  the  said  mortgagee, 
and  his  heirs  and  assigns,  that  said  mortgagor  is  lawfully  possessed 
of  the  said  goods  and  chattels,  as  of  his  own  property;  that  the 
same  are  free  from  all  incumbrances,  and  that  he  will  warrant  and 

defend  the  same  to ,  the  said  mortgagee,  and  to  his  heirs  and 

assigns,  against  the  lawful  claims  and  demands  of  all  persons. 

Provided,  nevertheless,  that  if  the  said  mortgagor  shall  pay  unto 

the  said  mortgagee  the  sum  of dollars,  on  the day , 

187 ,  [or  perform  any  other  condition]  then  this  mortgage  to  be 

void,  otherwise  to  remain  in  full  force  and  effect. 

And  provided  further,  that  until  default  be  made  by  the  said 
mortgagor,  in  the  performance  of  the  condition  aforesaid,  it  shall 
and  may  be  lawful  for  him  to  retain  the  possession  of  the  said  goods 
and  chattels,  and  to  use  and  enjoy  the  same ;  but  if  the  same,  or  any 
part  thereof,  shall  be  attached  or  claimed  by  any  other  person  or 
persons,  at  any  time  before  payment,  or  the  said  mortgagor,  or  any 
person  or  persons  whatever,  upon  any  pretense,  shall  attempt  to 
carry  off,  conceal,  make  way  with,  sell,  or  in  any  manner  dispose 
of  the  same,  or  any  part  thereof,  without  the  authority  and  per- 
mission of  the  said  mortgagee,  or  his  heirs,  executors,  adminis- 
trators, or  assigns,  in  writing  expressed,  then  it  shall  and  may  be 
lawful  for  the  said  mortgagee,  with  or  without  assistance,  or  his 
agent  or  attorney,  or  heirs,  executors,  or  administrators,  to  take  pos- 
session of  said  goods  and  chattels,  by  entering  upon  any  premises 
wherever  the  same  may  be,  whether  in  this  county  or  State,  or  else- 
where, to  and  for  the  use  of  said  mortgagee,  his  heirs  or  assigns. 
And  if  the  moneys  hereby  secured,  or  the  matters  to  be  done  or 
performed,  as  above  specified,  are  not  duly  paid,  done,  or  performed 
at  the  time  and  according  to  the  conditions  above  set  forth,  then 
the  said  mortgagee,  or  his  attorney  or  agent,  or  his  heirs,  executors, 
administrators,  or  assigns,  may  by  virtue  hereof,  and  without  any 
suit  or  process,  immediately  enter  and  take  possession  of  said 
goods  and  chattels,  and  sell  and  dispose  of  the  same  at  public  or 
private  sale ;  and  after  satisfying  the  amount  due  and  all  expenses, 
the  surplus,  if  any  remain,  shall  be  paid  over  to  said  mortgagor,  or 
his  heirs  or  assigns.  The  exhibition  of  this  mortgage  shall  be 
sufficient  proof  that  any  person  claiming  to  act  for  the  mortgagee 
is  duly  made,  constituted,  and  appointed  agent  and  attorney  to  do 
whatever  is  above  authorized. 


LEGAL    INSTRUMENTS.  297 

In  witness  whereof,  the  said  mortgagor  has  hereunto   set  his 

hand  and  seal,  this day  of  ,  in  the  year  of  our  Lord  one 

thousand  eight  hundred  and . .  [Seal.] 

.  [Seal} 

Signed,  sealed,  and  delivered  in  presence 

of . 

187.  Lease,  general  form. 

This  indenture,  made  the  day  of ,  in  the  year  of  our 

Lord  one  thousand  eight  hundred  and  seventy ,  between , 

of  the ,  party  of  the  first  part,  and ,  of  the ,  party  of 

the  second  pai't,  Witnesseth  :  That  the  said  party  of  the  first  part, 
for  and  in  consideration  of  the  rents,  covenants,  and  agree- 
ments hereinafter  mentioned  and  obtained  on  the  part  of  the  said 
party  of  the  second  part,  his  executors,  administrators,  and  assigns, 
to  be  j  >aid,  observed,  and  performed,  hath  demised  and  leased,  and 
by  these  presents  doth  demise  and  lease,  unto  the  said  party  of  the 

second  part,  his  executors,  administrators,  and  assigns, ,  [here 

give  description  of  the  leased  property]  together  with  all  and  sin- 
gular the  benefits,  liberties,  and  privileges  to  the  said  premises 
belonging.  To  have  and  to  hold  the  said  demised  premises,  with 
the  appurtenances,  unto  the  said  party  of  the  second  part,  his  ex- 
ecutors, administrators,  and  assigns,  for  and  during  and  until  the 

full  end  and  term  of ,  next  ensuing  the day  of  ; ,  fully 

to  be  complete  and  ended ;  yielding  and  paying  therefor  during 
the  continuance  of  the  lease  unto  the  said  party  of  the  first  part, 
his  heirs  and  assigns.  [Here  state  terms  of  rental,  time  of  pay- 
ments^ etc.]  And  the  said  party  of  the  second  part,  for  his  exec- 
utors, administrators,  and  assigns,  doth  covenant  well  and  truly  to 
pay,  or  cause  to  be  paid,  unto  the  said  party  of  the  first  part,  his 
heirs  and  assigns,  at  the  days  and  times  above  mentioned,  the  rent 
above  reserved.  And  at  the  end  of  the  said  term  shall  and  will 
peaceably  and  quietly  leave,  surrender,  and  yield  up  the  said 
premises  unto  the  said  party  of  the  first  part,  his  heirs  and  assigns ; 
provided  always,  and  these  presents  are  upon  the  express  condition, 
that  if  it  shall  so  happen  that  the  rent  above  reserved,  or  any  part 
thereof,  be  behind  or  unpaid  at  the  times  or  on  the  days  above 
mentioned  for  the  payment  thereof,  or  in  case  of  the  non-perform- 
ance of  any  of  the  covenants  made  by  the  said  party  of  the  second 
part,  at  any  of  the  times  mentioned  for  the  performance  thereof, 
then  and  from  thenceforth  it  shall  and  may  be  lawful  for  the  said 
party  of  the  first  part,  his  heirs  and  assigns,  into  the  said  demised 

premises, ,  or  any  part,  in  the  name  of  the  whole,  to  re-enter, 

and  the  same  to  have  again,  retain,  re-possess,  and  enjoy,  and  the 
said  party  of  the  second  part,  his  heirs,  executors,  administrators, 
or  assigns,  and  all  others,  tenants  or  occupiers  of  the  said  premises 
hereby  demised,  or  any  part  thereof,  thereout,  or  therefrom,  utterly 
to  expel,  put  out,  and  remove;  and  from  and  after  such  re-entry 
made,  this  lease,  and  every  part  thereof,  shall  cease,  and  be  abso- 
lutely void,  as  it  respects  the  covenants  to  be  performed  by  the 


298  LEGAL    INSTRUMENTS. 

said  party  of  the  first  part.  And  the  said  party  of  the  first  part, 
for  his  heirs  and  assigns,  doth  hereby  covenant  and  agree  to  and 
with  the  said  party  of  the  second  part,  his  heirs,  executors,  admin- 
istrators, or  assigns,  paying  the  rent  above  reserved  in  manner 
aforesaid,  and  observing,  keeping,  and  performing  all  and  singular 
the  covenants  and  agreements  hereinbefore  mentioned  on  his  and 
their  parts  to  be  kept  and  performed,  shall  and  may  peaceably  and 
quietly  have,  hold,  occupy,  possess,  and  enjoy  the  said  demised 
premises,  with  the  appurtenances,  for  and  dui-ing  the  said  term, 
without,  any  lawful  let,  quit,  hindrance,  or  molestation  to  the  said 
party  of  the  first  part,  his  heirs  and  assigns,  or  any  other  person  or 
persons  claiming  or  to  claim  by,  from,  or  under  him  or  them,  or 
any  other  person  or  persons  having  or  lawfully  claiming  any  right 
in  the  said  premises. 

In  witness  whereof,  the  parties  hereunto  have  interchangeably 
set  their  hands  and  seals,  the  day  and  year  first  above  written. 

.  [Seal.'} 

.  [Seal.] 

Signed,  sealed,  and  delivered  in 
presence  of . 


188.  Form  of  bill  of  sale. 

Know  all  men  by  these  presents,  that ,  of  the ,  State  of 

California,  the  party  of  the  first  part,  for  and  in  consideration  of  the 

sum  of dollars, of  the  United  States  of  America,  to  him  in 

hand  paid  by ,  the  party  of  the  second  part,  the  receipt  whereof 

is  hereby  acknowledged,  does  by  these  presents  grant,  bargain,  sell, 
and  convey  unto  the  said  party  of  the  second  part,  his  executors, 

administrators,  and  assigns, ,  to  have  and  to  hold  the  same  to 

the  said  party  of  the  second  part,  his  executors,  administrators, 
and  assigns  forever.  And  he  does,  for  his  heirs,  executors,  and 
administrators,  covenant  and  agree  to  and  with  the  said  party  of 
the  second  part,  his  executors,  administrators,  and  assigns,  to 
warrant  and  defend  the  sale  of  said  property,  goods,  and  chattels 
hereby  made  unto  the  said  party  of  the  second  part,  his  executors, 
administrators,  and  assigns,  against  all  and  every  person  and  persons 
whomsoever. 

In  witness  whereof,  has  hereunto  set   his  hand  and  seal, 

the day  of ,  in  the  year  of  our  Lord  one  thousand  eight 

hundred  and  seventy .  .  [Seal.] 

Sealed  and  delivered  in  the  presence 
of . 


139.  Form  of  bill  of  sale  of  personal  property,  Illinois  form. 

Know  all  men  by  these  presents,  that ,  of ,  State  of  Illinois, 

in  consideration  of -,  paid  by ,  the  receipt  whereof  is  hereby 

•acknowledged,  does  hereby  bargain,  sell,  and  deliver  unto  the  said 


LEGAL    INSTRUMENTS.  299 

,  to  have  and  to  hold  the  said  goods  and  chattels  unto  the 

said  ,  his  executors,  administrators,  and  assigns,  to own 

proper  use  and   benefit   forever.     And  ,  the  said  ,  does 

avouch  himself  to  be  the  true  and  lawful  owner  of  said  goods  and 
chattels ;  that  he  has  full  power,  good  right,  and  lawful  authority 
to  dispose  of  said  goods  and  chattels,  in  manner  as  aforesaid ;  and 
that  he  will,  and  his  heirs,  executors,  and  administrators  shall,  war- 
rant and  defend  the  said  bargained  premises unto  the  said , 

executors,  administrators,  and  assigns,  from  and  against  the  lawful 
claims  and  demands  of  all  persons. 

In  witness  whereof, ,  the  said ,  hath  hereto  set  his  hand 

and  seal  this •  day  of ,  in  the  year  of  our  Lord  eighteen 

bundred  and .  — .  [Seal.] 

Executed  and  delivered  in  presence  .  [/SeaZ.J 

of 

190.  Form  of  special  power  of  attorney. 

Know  all  men  by  these  presents,  that have  made,  consti- 
tuted, and  appointed,  and  by  these  presents  do  make,  constitute,  and 

appoint, ,  my  true  and  lawful  attorney,  for  myself  and  in  my 

name,  place,  and  stead ;  giving  and  granting  unto ,  my  said  at- 
torney, full  pow%r  and  authority  to  do  and  perform  all  and  every 
act  and  thing  whatsoever  requisite  and  necessary  to  be  done  in  and 
about  the  premises,  as  fully  to  all  intents  and  purposes  as  I  might  or 
c6uld  do  if  personally  present,  with  full  power  of  substitution  and 
.  revocation,  hereby  ratifying  and  confirming  all  that  my  said  attor- 
ney or  his  substitute  shall  lawfully  do  or  cause  to  be  done  by  vir- 
tue of  these  presents. 

In  witness  whereof,  I  have  hereunto  set  my  hand  and  seal,  the 
day  of ,  one  thousand  eight  hundred  and  seventy . 

Signed,  sealed,  and  delivered  in  the  ' .  \_Seal.~\ 

presence  of .  . 


191.  Form  of  general  power  of  attorney. 

Know  all  men  by  these  presents,  that  I  have  made,  constituted, 
and  appointed,  and  by  these  presents  do  make,  constitute,  and 

appoint, ,  true  and  lawful  attorney,  for  me  and  in  my  name, 

place,  and  stead,  and  for  my  use  and  benefit, to  ask,  demand, 

sue  for,  recover,  collect,  and  receive  all  such  sums  of  money,  debts, 
dues,  accounts,  legacies,  bequests,  interests,  dividends,  annuities,  and 
demands  whatsoever,  as  are  now  or  shall  hereafter  become  due, 
owing,  payable,  or  belonging  to  me,  and  have,  use,  and  take  all 
lawful  ways  and  means,  in  my  name  or  otherwise,  for  the  recovery 
thereof,  by  attachments,  arrests,  distress,  or  otherwise,  and  to  com- 
promise and  agree  for  the  same,  and  acquittances  or  other  sufficient 
discharges  for  the  same,  for  me  and  in  my  name,  to  make,  seal, 
and  deliver;  to  bargain,  contract,  agree  for,  purchase,  receive,  and 
take  lauds,  tenements,  hereditaments,  and  accept  the  seizin  and 


300  LEGAL   INSTRUMENTS. 

possession  of  all  lands,  and  all  deeds  and  other  assurances,  in  the 
law  therefor,  and  to  lease,  let,  demise,  bargain,  sell,  remise,  release, 
convey,  mortgage,  and  hypothecate  lands,  tenements,  and  heredita- 
ments upon  such  terms  and  conditions,  and  under  such  covenants, 

as shall  think  fit.    Also,  to  bargain  and  agree  for,  buy,  sell, 

mortgage,  hypothecate,  and  in  any  and  every  way  and  manner 
deal  in  and  with  goods,  wares,  and  merchandise,  choses  in  action, 
and  other  property  in  possession  or  in  action,  and  to  make,  do,  and 
transact  all  and  every  kind  of  business  of  what  nature  and  kind 
soever,  and  also  for  me  and  in  my  name,  and  as  my  act  and 
deed,  to  sign,  seal,  execute,  deliver,  and  acknowledge  such  deeds, 
leases  and  assignment  of  leases,  covenants,  indentures,  agreements, 
mortgages,  hypothecations,  bottomries,  charter  parties,  bills  of 
lading,  bills,  bonds,  notes,  receipts,  evidences  of  debt,  releases  and 
satisfaction  of  mortgage,  judgment  and  other  debts,  and  such 
other  instruments  in  writing,  of  whatever  kind  and  nature,  as  may 
be  necessary  or  proper  in  the  premises.  Giving  and  granting  unto 

,  said  attorney,  full  power  and  authority  to  do  and  perform  all 

and  every  act  and  thing  whatsoever  requisite  and  necessary  to  be 
done  in  and  about  the  premises,  as  fully  to  all  intents  and  purposes 
as  I  might  or  could  do  if  personally  present,  I  hereby  ratifying  and 

confirming  all  that ,  said  attorney ,  sha],l  lawfully  do  or 

cause  to  be  done  by  virtue  of  these  presents. 

In  witness  whereof,  I  have  hereunto  set  my  hand  and  seal,  the 
day  of ,  one  thousand  eight  hundred  and  seventy . 

Signed,  sealed,  and  delivered  in  the .  [/Seal.'] 

presence  of ; — . 


192.  Agreement^  California  form. 

This  agreement,  made  the day  of ,  in  the  year  of  our 

Lord  one  thousand  eight  hundred  and  seventy ,  between , 

of  ,  the  party  of  the  first  part,  and  ,  of  ,  the  party 

of  the  second  part,  Witnesseth:  That  the  said  party  of  the 
first  part,  in  consideration  of  the  covenants,  promises,  and  agree- 
ments on  the  part  of  the  said  party  of  the  second  part,  hereinafter 
contained,  hereby  covenants,  promises,  and  agrees  to  and  with  the 
said  party  of  the  second  part,  that  the  said  party  of  the  first  part 
will .  And  the  said  party  of  the  second  part,  in  considera- 
tion of  the  said  covenants,  promises,  and  agreements  on  the  part 
of  the  said  party  of  the  first  part,  hereinbefore  contained,  cove- 
nants, promises,  and  agrees  to  and  with  the  said  party  of  the  first 

part,  that  the  said  party  of  the  second  part  will .     And  for 

the  true  and  faithful  performance  of  all  and  every  of  the  said  cov- 
enants, promises,  and  agreements,  the  said  parties  to  these  presents 

bind  themselves,  each  unto  the  other,  in  the  penal  sum  of  

dollars, of  the  United  States  of  America,  as  fixed,  settled, 

and  liquidated  damages,  to  be  paid  by  the  failing  party  to  the 
other,  bis  heirs  or  assigns. 


LEGAL    INSTRUMENTS.  301 

In  witness  whereof,  the  said  parties  to  these  presents  have  here- 
unto set  their  hands  and  seals,  the  day  and  year  first  above  written. 

.  [SeaLl 

.  [Seal] 

Signed,  sealed,  and  delivered  in 
the  presence  of . 


193.  Bond  for  a  deed,  California  form. 

Know  all  men  by  these  presents,  that  — - —  are  held  and  firmly 

bound  unto ,  in  the  sum  of dollars, of  the  United 

States  of  America,  to  be  paid  to  the  said ,,executors,  adminis- 
trators, or  assigns ;  for  which  payment  well  and  truly  to  be  made 

bind heirs,  executors,  and  administrators, firmly  by 

these  presents.     Sealed  with seal,  and  dated  the day  of 

,  A.  D.  one  thousand  eight  hundred  and  seventy .  The  con- 
dition of  the  above  obligation  is  such,  that  if  the  above  bounden 

obligor  shall,  on  ,  the  day  of  ,  A.  D.  one  thousand 

eight  hundred  and  seventy ,  make,  execute,  and  deliver  unto  the 

said ,  (provided  that  the  said s.hall,  on  or  before  that  day, 

have  paid  the  said  obligor  the  sum  of  dollars, the  price 

by  said agreed  to  be  paid  therefor)  a  good  and  sufficient  con- 
veyance   of  all  that  certain  lot,  piece,  or  parcel  of  land  situ- 
ate, lying,  and  being  in  the ,  county  of and  State  of , 

and  bounded  and  particularly  described  as  follows,  to  wit : . 

Then  this  obligation  to  be  void,  otherwise  to   remain  in  full  force 

and  virtue.  .  \Seal.~\ 

.  [Seal.'} 

Signed,  sealed,  and  delivered  in  the 
presence  of . 


194.  Bond  for  a  deed,  Illinois  form. 

Know  all  men  by  these  presents,  that ,  of ,  in  the  county 

of and  State  of  Illinois,  is  held  and  firmly  bound  unto , 

of ,  in  the  county  of and  State  of ,  in  the  penal  sum 

of dollars,  for  the  payment  of  which  sum,  well  and  truly  to  be 

made  to  Lim,  his  heirs,  executors,  and  administrators,  I  bind  myself, 
my  heirs,  executors,  and  administrators,  firmly  by  these  presents. 

Sealed  with  my  seal  and  dated  this day  of ,  18 . 

The  condition  of  the  above  obligation  is  such,  that  whereas,  the 

said this  day  has  given  the  said promissory  note  of  even 

date  herewith,  — '• — .  Now  if,  on  payment  of  the  said  note  being 

made  on  or  before  the  time  -« — ^  shall become  due,  and  all 

taxes  on  the  land  hereinafter  described  having  been  paid  by  the 

said ,  and  no  right  of  pre-emption  having  been  established  or 

claimed  on  the  said  land,  or  any  part  thereof,  the  said  ,  or 


302  LEGAL   INSTRUMENTS. 

his  legal  representatives,  shall,  whenever  thereunto  afterward 
requested,  execute  and  deliver  to  the  said ,  or  his  legal  repre- 
sentatives, a  good  and  sufficient  deed,  conveying  to the , 

free  and  clear  of  all  incumbrance ,  then  this  obligation  to  be 

null  and  void,  otherwise  of  full  force  and  effect,  it  being  distinctly 
understood  and  agreed,  by  and  between  the  parties  hereto,  that  the 

time  of  payment  herein  above  fixed material  and  of  the  essence 

of  this  contract,  and  that,  in  case  of  failure  therein,  the  intervention 

of  equity  is  forever  barred.  .  [Seal.'] 

Signed,  sealed,  and  delivered  in .  \_SeaL] 

presence  of . 

195.     Agreement  for  sale  of  real  estate,  California  form. 

This  agreement,  made  and  entered  into  the day  of ,  in 

the  year  of  our  Lord  one  thousand  eight  hundred  and  seventy , 

between ,  party  of  the  first  part  and  ,  of  ,  the  party 

of  the  second  part,  Witnesseth:  That  the  said  party  of  the  first 
part,  in  consideration  of  the  covenants  and  agreements  on  the 
part  of  the  said  party  of  the  second  part,  hereinafter  contained, 
agrees  to  sell  and  convey  unto  the  said  party  of  the  second  part, 

and  said  second   party   agrees  to   buy   all  certain  —  -   or 

parcel  of  land  situate  in  the  ,  county  of  and  State  of 

,  and  bounded  and  particularly  described  as  follows,  to  wit : 

for  the  sum  of dollars, of  the  United  States,  and 

the  said  party  of  the  second  part,  in  consideration  of  the  premises, 

agrees  to  pay to  the  said  party  of  the  first  part,  the  said  sum 

of dollars, as  follows,  to  wit : and  the  said  party 

of  the  second  part  agrees  to  pay  all  State, ,  and  county  taxes, 

or  assessments  of  whatsoever  nature,  which  are  or  may  become  due 
on  the  premises  above  described. 

In  the  event  of  a  failure, to  comply  with  the  terms  hereof,  by  the 
said  party  of  the  second  part,  the  said  party  of  the  first  part  shall 
be  released  from  all  obligation  in  law  or  equity  to  convey  said 
property,  and  said  party  of  the  second  part  shall  forfeit  all  right 
thereto.  And  the  said  party  of  the  first  part,  on  receiving  such 
payment,  at  the  time  and  in  the  manner  above  mentioned,  agrees 
to  execute  and  to  deliver  to  the  said  party  of  the  second  part,  or  to 

his  assigns,  a  good  and  sufficient  deed .     And  it  is  understood 

that  the  stipulations  aforesaid  are  to  apply  to  and  bind  the  heirs, 
executors,  administrators,  and  assigns  of  the  respective  parties.  — 

In  witness  whereof,  the  said  parties  to  these  presents  have  here- 
unto set  their  hands  and  seals,  the  day  and  year  first  above  written. 

.  [Seal.] 

Signed,  sealed,  and  delivered  in .  [Seal.  \ 

presence  of . 


LEGAL    INSTRUMENTS.  303 

196.     Form  of  contract  for  the  sale  of  real  'estate,   Ohio  form. 

This  agreement,  made  and  entered  into  at ,  this day  of 

,  A.  D.  one  thousand  eight  hundred  and ,  by  and  between 

,  of ,  County  and  State  of  Ohio,  and ,  of ,  County 


and  State  of  Ohio,  Witnesseth  :  That  the  said hath  sold,  and 

doth  agree  to  convey  in  fee-simple  unto  said ,  his  heirs  and  as- 
signs forever,  by  a  good  and  sufficient  deed  of  general  warranty, , 

on  or  before  the day  of  ,  A.  D.  1 8 ,  (upon  the  punctual 

payment  by  said of  the  consideration-money  hereinafter  men- 
tioned) the  following  premises,  situate  in ,  and  bounded  and 

described  as  follows : .  Together  with  all  the  privileges  and  ap- 
purtenances to  the  same  belonging,  and  all  the  rents,  issues,  and  prof- 
its thereof.  And  the  said ,  for ,  and  for heirs,  execu- 
tors, administrators,  and  assigns,  do  covenant  and  agree  to  and  with 

,  heirs  and  assigns,  that  he  will  pay  to  the  said ,  heirs  or 

assigns,  the  sum  of ,  the  consideration-money  for  said  premises 

in  the  manner  following :  .    All  assessments  and  taxes,  that 

now  are  or  may  hereafter  be  levied  or  assessed  on  said  premises, 

are  to  be  paid  in  the  manner  following :   .     The  said  

hereby  agrees  that  the  said shall  enter  into  possession  of  said 

premises  on  the day  of ,  A.  D.  18 ,  to  use  and  improve 

as  his  own,  in  a  good  and  husbandlike  manner. 

It  is  understood  and  agreed,  by  and  between  the  parties  to  this 
agreement,  that  if  the  said fail  to  pay  the  said  consideration- 
money,  or  the  assessments  or  taxes  as  herein  stipulated, then 

this  agreement  is  to  be  void  as  it  regards  the  said  ,  at  

option. 

In  testimony  whereof,  the  said  have  hereunto  set  their 

hands  and  seals,  the  day  and  year  first  above  written. 


Signed  and  sealed  in  presence 
of  us : 


'jSeal. 


Seal 


19*7.    Articles  of  agreement  for  warranty  deed,  Illinois  form. 

Articles  of  agreement,  made  this day  of  ,  in  the  year 

of  our  Lord  one  thousand  eight  hundred  and  ,  between , 

party  of  the  first  part,  and  ,  party  of  the  second  part,  Wit- 
nesseth :  That  said  party  of  the  first  part  hereby  covenants  and 
agrees,  that  if  the  party  of  the  second  part  shall  first  make  the  pay- 
ments and  perform  the  covenants  hereinafter  mentioned  on  

part  to  be  made  and  performed,  the  said  party  of  the  first  part  will 
convey  and  assure  to  the  party  of  the  second  part,  in  fee-simple, 
clear  of  all  incumbrances  whatever,  by  a  good  and  sufficient  war- 
ranty deed,  the  following  lots,  pieces,  or  parcels  of  ground,  viz : 

.    And  the  said  party  of  the  second  part  hereby  covenants  and 

agrees  to  pay  to  said  party  of  the  first  part  the  sum  of dollars, 


304  LEGAL    INSTRUMENTS. 

in  the  manner  following :  dollars,  cash  in  hand  paid,  the  re- 
ceipt whereof  is  hereby  acknowledged,  and  the  balance ,  with 

interest  at  the  rate  of  per  centum  per  annum,  payable 

annually,  on  the  whole  sum  remaining  from  time  to  time  unpaid, 
and  to  pay  all  taxes,  assessments,  or  imposition-:  that  may  be  legally 

levied  or  imposed  upon  said  land,  subsequent  to  the  year ,  and 

in  case  of  the  failure  of  the  said  party  of  the  second  part  to  make 
cither  of  the  payments,  or  perform  any  of  the  covenants  on  his 
part  hereby  made  and  entered  into,  this  contract  shall,  at  the  op- 
tion of  the  party  of  the  first  part,  be  forfeited  and  determined,  and 
the  party  of  the  second  part  shall  forfeit  all  payments  made  by  him 
on  this  contract,  and  such  payments  shall  be  retained  by  the  said 
party  of  the  first  part  in  full  satisfaction  and  in  liquidation  of  all 
damages  by  him  sustained,  and  he  shall  have  the  right  to  re- 
enter  and  take  possession  of  the  premises  aforesaid, . 

It  is  mutually  agreed  that  all  the  covenants  and  agreements 
herein  contained  shall  extend  to  and  be  obligatory  upon  the  heirs, 
executors,  administrators,  and  assigns  of  the  respective  parties. 

In  witness  whereof,  the  parties  to  these  presents  have  hereunto 
set  their  hands  and  seals,  the  day  and  year  first  above  written. 

Signed,  sealed,  and  delivered  in  — .  f  Seal.'] 

presence  of .  .  f  £ea£.1 

.  [Seal] 


198.  Farm  land  contract,  Michigan  form. 

This  contract,  made  the day  of  ,  in  the  year  of  our 

Lord  one  thousand  eight  hundred  and ,  between ,  party 

of  the  first  part,  and •,  party  of  the  second  part,  Witnesseth  as 

follows : 

1st.  The  said  party  of  the  first  part,  in  consideration  of  the  sum 

of ,  to  be  paid  to  the  party  of  the  first  part,  and  of  the  covenants 

to  be  performed  by  the  said  party  of  the  second  part,  as  hereinafter 
expressed,  hereby  agrees  to  sell  to  the  said  party  of  the  second 

part,  all  th certain  tract  of  land  situate  in  the of ,  in 

the  State  of  Michigan,  known  and  designated  as  ,  with  the 

privileges  and  appurtenances  thereunto  belonging. 

2d.  The  said  party  of  the  second  part,  in  consideration  of  the 
covenants  herein  contained  on  behalf  of  the  said  party  of  the  first 
part,  agrees  to  purchase  of  the  said  party  of  the  first  part  the  above 
described  land,  and  to  pay  for  the  same  to  the  said  party  of  the 

first  part,  or  his  legal  representatives,  the  sum  of  dollars  and 

cents,  lawful  money  of  the  United  States,  in  manner  follow- 
ing, that  is  to  say : with  interest,  to  be  computed  from  the  date 

of  these  presents,  at and  after  the  rate  of per  centum  per 

annum,  on  the  whole  sum  that  shall  be  from  time  to  time  unpaid, 
and  to  be  paid  annually ;  both  principal  and  interest  to  be  paid 

;  and  also,  that  he  will,  so  long  as  any  part  of  the  principal 

or  interest  of  the  said  consideration-money  remains  unpaid,  well 
and  faithfully,  in  due  season,  in  each  and  every  year,  pay,  or  cause 


LEGAL    INSTRUMENTS.  305 

to  be  paid,  nil  taxes  and  assessments,  ordinary  and  extraordinary, 
that  may,  for  any  purpose  whatevei-,  be  levied  or  assessed  on  said 
premises,  or  on  this  contract,  and  that  he  will  not  commit  or  suffer 
any  other  person  to  commit  any  waste  or  damage  to  the  said  lands 
or  the  appurtenances,  except  for  fire-wood,  or  otherwise  for  his  own 
use,  or  while  clearing  off  the  lands  for  cultivation  in  the  ordinary 
manner. 

3d.  The  said  party  of  the  first  part  further  covenants  and  agrees 
with  the  said  party  of  the  second  part,  that  upon  the  faithful  per- 
formance, by  the  said  party  of  the  second  part,  of  the  covenants 
and  agreements  by  him  to  bo  performed,  and  upon  the  payment 
of  the  several  sums  of  money  above  mentioned,  and  the  interest 
thereon,  at  the  time  and  in  the  manner  and  at  the  place  above 
mentioned,  to  the  said  party  of  the  first  part,  that  thereupon  the 
said  party  of  the  first  part  will  well  and  faithfully  execute  and  de- 
liver a  good  and  sufficient  deed  or  deeds,  and  thereby  convey  to 
the  said  party  of  the  second  part,  his  heirs  and  assigns,  a  good 
and  unincumbered  title  in  fee-simple  to  the  above  described  prem- 
ises, with  their  appurtenances. 

4th.  It  is  further  mutually  covenanted  and  agreed,  by  and  be- 
tween the  parties  hereto,  that  the  said  party  of  the  second  part  may 
immediately  enter  on  the  said  land,  and  remain  thereon  and  culti- 
vate the  same  as  long  as  he  shall  fulfill  and  perform  all  the  agree- 
ments hereinbefore  mentioned  on  his  part  to  be  fulfilled  and 
performed,  and  no  longer ;  and  that  if  he  shall,  at  any  time 
hereafter,  violate  or  neglect  to  fulfill  any  of  said  agreements,  lie 
shall  forfeit  all  right  or  claim  under  this  contract,  and  be  liable  to 
the  said  party  of  the  first  part  for  damages,  and  shall  also  be  liable 
to  be  removed  from  the  said  land  in  the  same  manner  as  is  pro- 
vided by  law  for  the  removal  of  a  tenant  that  holds  over  after  the 
expiration  of  the  time  specified  in  his  lease.  And  it  shall  be  law- 
ful for  the  said  party  of  the  first  part,  at  any  time  after  the  viola- 
tion or  non-fulfillment  of  any  of  the  said  agreements  on  the  part 
of  the  said  party  of  the  second  part,  to  sell  and  convey  the  said 
land,  or  any  part  thereof,  to  any  other  person  whomsoever ;  and  the 
said  party  of  the  first  part  shall  not  be  liable  in  any  way,  nor  to  any 
person,  to  refund  any  part  of  the  money  which  he  may  have  re- 
ceived on  this  contract,  nor  for  any  damages  on  account  of  such 
sale.  And  it  is  hereby  expressly  understood  and  declared,  that 
time  is  and  shall  be  deemed  and  taken  as  of  the  very  essence  of 
this  contract,  and  that  unless  the  same  shall,  in  all  respects,  be 
complied  with  by  the  said  party  of  the  second  part,  n,t  the  respective 
times,  and  in  the  manner  above  limited  and  declared,  that  the  said 
party  of  the  second  part  shall  lose  and  be  debarred  from  all  rights, 
remedies,  or  actions,  either  in  law  or  equity,  upon  or  under  this 
contract. 

5th.   This  contract  is  hereby  declared  to  be  binding  on  the  re- 
spective representatives  of  the  parties  hereto. 

NOTARIES — 20. 


806  LEGAL    INSTRUMENTS. 

In  -witness  whereof,  the  parties  to  these  presents  have  hereunto 
set  their  hands  and  seals,  the  day  and  year  first  above  written. 

Sealed  and  delivered  in  •  • . 

presence  of . 


199.  Building  contract,   Ohio  form. 

This  agreement,  between ,  of ,  county  of and  State 

of  Ohio,  party  of  the  first  part,  (designated  below  as  the  employer) 

and ,  of ,  party  of  the  second  part,  (designated  below  as 

the  contractor)  Witnesseth : 

1.  That  the  contractor  agrees  to  furnish  all  the  material,  and  do 
all  the  work  of   whatever  kind,   required  by,  or  reasonably  to  be 
inferred  from,  the  plans  and  specifications,  (said  plans  and  specifica- 
tions being  hereby  incorporated  with   and  made  a  part  of  this 

contract)  for  the  full  and  entire  completion  of ,  (designated 

herein  as  the  improvement)  for  the  sum  of dollars. 

2.  The  said  contractor  further  agrees  that  all  materials  called 
for  by  the  said  plans  and  specifications  are  to  be  of  the  best  qualities 
of  their  respective  kinds,  and  that  all  work  shall  be  done  in  the 
most  thorough  and  workmanlike  manner,  and  that  he  will  not  vary 
in  any  manner  from  the  said  plans  and  specifications  without  the 
written  order  of  the  employer. 

3.  The  said  contractor  further  agrees  that  he  will  entirely  com- 
plete the  said  improvement  by  the day  of ,  18 ;  and 

it  is  expressly  agreed  between  the  parties  that  the  damages  by  each 

day's  delay,  beyond  that  date,  are  fairly  to  be  estimated  at , 

and  are  therefore,  to  avoid  dispute,  hereby  fixed  by  agreement  at 
that  sum  per  day,  and  the  amount  of  damages,  estimated  upon  the 
basis  so  fixed,  is  to  be  deducted  from  the  contract  price  as  liquidated 
damages,  and  not  by  way  of  penalty. 

4.  The  said  employer  *  reserves  the  right  to  order  in  writing  any 
alteration  he  may  deem  proper,  from  the  said  plans  and  specifica- 
tions.    It  is  agreed  between  the  parties  that  upon  the  delivery  of 
any  such  order  to  the  contractor,  or  person  in  charge  of  said  work, 
it  shall  be  the  duty  of  either  party,  claiming  any  allowance  in  con- 
sequence of  such  alteration,  to  notify  the  other  party  in  writing, 
before  the  alteration  is  actually  commenced,  and  if  the  parties  arc 
able  to  agree  upon  the  amount  to  be  added  or  deducted  from  the 
contract  price,  in  consequence  of  such  alteration,  it  shall  be  reduced 
to  writing  and  signed  by  them.     If  they  cannot  so  agree,  then  the 

said  amount  shall  be  fixed  by ,  or  in  case  he  cannot  act,  then 

by  some  one  to  be  appointed  by ,  who  shall  make  his  decision 

in  writing,  and  furnish  both  parties  with  a  copy,  and  such  decision 
shall  be  final. 

5.  It  is  expressly  agreed  by  the  parties  that  no  such  alteration 
shall  in  any  way  vitiate  or  annul  this  contract ;  and,  further,  that 
in  case  of  an  alteration  causing  a  deduction  in  work  or  materials, 
the  contractor  is  not  to  claim  or  bring  suit  for  any  damages  by  way 


LEGAL    INSTRUMENTS.  307 

of  loss  of  profits,  on  account  of  not  being  allowed  to  do  this  work, 
nor  is  the  referee  to  admit  this  element  into  his  decisions. 

6.  The  said  contractor  expressly  covenants  and  agrees  that  he 
will  not,  in  any  event,  claim  or  bring  suit  for  any  greater  sum,  for 
the  entire  completion  of  the  said  improvement,  than  the  contract 
price,  with  such  additions  or  deductions  as   may  be  fixed  by  the 
written  contracts  and  decisions  above  provided  for. 

7.  The   said   parties   expressly  agree  that  no  acts  of  any  kind 
whatever,  of  either  party,  or  both  parties,  shall  be  construed  to  be 
a  waiver  of  the  provisions  of  this  contract,  which  require  a  written 
order  for,  or  the  fixing  by  written  agreement  or  decision  of  a  price 
for,  any  alteration  from  the  said  plans  and  specifications ;  and  fur- 
ther expressly  agree  that  the  making  of  any  alteration,  without  a 
written  agreement  fixing  the  allowance  to  be  made  therefor,  shall 
be  taken  to  be  an  express  agreement  that  the  aggregate  price  shall 
not  be  changed  at  all,  in  consequence  of  such  alteration. 

8.  The  said  employer  reserves  the  right  to  appoint  a  superin- 
tendent, or  inspector,  of  this  improvement,  and  it  is   expressly 
stipulated  and   agreed  that  no  claim  shall  be  made  or  suit  brought 
for  any  sum  due,  or  claimed  to  be  due,  for  said  improvement,  unless 
upon  certificate  of  the  said  superintendent  or  inspector,  that  the 
improvement  has  been  made  in  strict  accordance  with  the  contract, 
and  plans,  and  specifications,  or  such  alterations  as  may  have  been 
made  therein  in  accordance  with  the  stipulations  of  this  contract. 

9.  Said  parties  further  stipulate  that,  upon  the  failure  by  the  con- 
tractor to  proceed  with  said  improvement  to  the   satisfaction  of 
the  employer,  so  as  to  secure  the  completion  of  the  improvement 
within  the  stipulated  time,  or  upon  his  failure  to  comply  with  the 
requirements  of  this  contract,  it  shall  be  lawful  for  the  employer, 
after  giving  ten  days'  written  notice  of  his  intention  so  to  do,  to  be 
served  upon  the  contractor,  (or  cither  of  them,  if  there  be  more  than 
one)  or  left  at  his  or  their  last  usual  place  of  abode,  either,  first,  to 
complete  said  improvement,  by  contract  or  day's  work,  at  the 
expense  of  the  said  party  of  the  second  part,  and  to  recover  from 
said   contractor  and  his  sureties   the  additional  expense  thereby 
incurred,  if  any,  over  the  amount  due  according  to  this  contract ; 
or,  second,  at  the  option  of  the  employer,  to  entirely  avoid  the  con- 
tract, and  bring  suit  at  once  against  said  contractor  and  his  sureties 
for  the  damages  occasioned  thereby,  in  which  latter  case,  all  work 
done,  and  materials  on  the  ground,  are  to  become  the  property  of 
the  employer,  without  any  further  payment  therefor. 

10.  The  said  employer  agrees,  upon  the  production  of  the  cer- 
tificate of  the  superintendent  or  inspector,  to  pay  for  the  full  and 
entire  completion  of  the  said  improvement  in  accordance  with  the 
plans  and  specifications,  the  contract  price  above  stipulated,  with 
such  additions  or  deductions  as  may  be  fixed  by  written  agreement 
or  decision  as  above  stipulated,  or  may  be  due  as  liquidated  dam- 
ages for  delay,  as  above  agreed,  and  no  more.     The  payment  to  be 
made  in  the   following  manner : 


308  LEGAL    INSTRUMENTS. 

In  witness  whereof,  the  said   parties   have   hereunto   set   their 
hands  this day  of ,  187 


200.  Builder's  contract,  Calif ornia  form. 

Articles  of  agreement,  made  this day  of ,  one  thousand 

eight  hundred  and  seventy ,  between  ,  of  ,  State  of 

California,  of  the  first  part,  and ,  of  ,  of  the  second  part : 

1st.  The  said  party  of  the  second  part  does  hereby,  for  himself, 
his  heirs,  executors,  and  administrators,  covenant,  promise,  and 
agree  with  and  to  the  said  party  of  the  first  part,  his  executors, 
administrators,  and  assigns,  that  he,  the  said  party  of  the  second 
part,  his  executors  and  administrators,  shall  and  will,  for  the  con- 
sideration hereinafter  mentioned,  on  or  before  the ,  well  and 

erect  and  finish  the  building ,  conformable  to  the  draw- 
ings and  specifications  made  by ,  and  signed  by  the  parties 

and  hereunto  annexed,  within  the  time  aforesaid,  in  a  good,  work- 
manlike, and  substantial  manner,  to  the  satisfaction  and  under  the 

direction  of  the  said ,  to  be  testified  by  a  writing  or  certificate 

under  the  hand  of  the  said ,  and  also  shall  and  will  find  and 

provide  such  good,  proper,  and  sufficient  materials,  of  all  kinds 
whatsoever,  as  shall  be  proper  and  sufficient  for  completing  and 

finishing  all  the ,  and  other  works  of  said  building  mentioned 

in  the specification,  for  the  sum  of  dollars.  And  the 

said  party  of  the  first  part  does  hereby,  for  himself,  his  heirs, 
executors,  and  administrators,  covenant,  promise,  and  agree,  with 
and  to  the  said  party  of  Ihe  second  part,  his  executors  and  admin- 
istrators, that  he,  the  said  party  of  the  first  part,  his  executors  or 
administrators,  shall  and  will,  in  consideration  of  the  covenants 
and  agreements  being  strictly  performed  and  kept  by  the  said  party 
of  the  second  part,  as  specified,  well  and  truly  pay,  or  cause  to  be 
paid,  unto  the  party  of  the  second  part,  his  executors,  administrat- 
ors, or  assigns,  the  said  sum  of  dollars, of  the  United 

States  of  America.  In  the  manner  following :  Provided, 

that  in  each  of  the  said  cases  a  certificate  be  obtained  and  signed 

by  the  said .  And  it  is  hereby  further  agreed  by  and  between 

the  said  parties : 

FIRST. — The  specifications  and  drawings  are  intended  to  co-op- 
erate, so  that  any  works  exhibited  in  the  drawings,  and  not  men- 
tioned in  the  specifications,  or  vice  versa,  are  to  be  executed  the 
same  as  if  it  were  mentioned  in  the  specifications,  and  set  forth  in 
the  drawing,  to  the  true  meaning  and  intention  of  the  said  draw- 
ings and  specifications. 

SECOXD. — The  contractor,  at  his  own  proper  costs  and  charges, 
is  to  provide  all  manner  of  materials  and  labor,  scaffolding,  imple- 
ments, moulds,  models,  and  cartage  of  every  description,  for  the 
due  performance  of  the  several  erections. 

THIRD. — Should  the  owner,  at  any  time  during  the  progress  of 
said  building,  request  any  alterations,  deviations,  additions,  or 


LEGAL    INSTRUMENTS.  309 

omissions  from  the  said  contract,  specifications,  or  plan 3,  he  shall 
be  at  liberty  to  do  so,  and  the  same  shall  in  no  way  affect  or  make 
void  the  contract,  but  will  be  added  to  or  deducted  from  the 
amount  of  the  said  contract  price,  as  the  case  may  be,  by  a-  fair 
and  reasonable  valuation. 

FOURTH. — Should  the  contractor,  at  any  time  during  the  prog- 
ress of  said  works,  refuse  or  neglect  to  supply  a  sufficiency  of 
materials  or  workmen,  the  owner  shall  have  the  power  to  provide 
materials  and  workmen,  (after  three  days'  notice,  in  writing,  given) 
to  finish  the  said  works,  and  the  expenses  shall  be  deducted  from 
the  amount  of  the  said  contract  price. 

FIFTH. — Should  any  dispute  arise  respecting  the  true  construc- 
tion or  meaning  of  the  drawings  or  specifications,  the  same  shall 

be  decided  by ,  and decision  shall  be  final  and  conclusive; 

but  should  any  dispute  arise  respecting  the  true  value  of  the  extra 
work  or  works  omitted,  the  same  shall  be  valued  by  two  compe- 
tent persons — one  employed  by  the  owner  and  the  other  by  the 
contractor — and  in  case  they  cannot  agree,  these  two  shall  have 
power  to  appoint  an  umpire,  whose  decision  shall  be  binding  on  all 
parties. 

SIXTH. — The  owner  shall  not,  in  any  manner,  be  answerable  or 
accountable  for  any  loss  or  damage  that  shall  or  may  happen  to 
the  said  works,  or  any  part  or  parts  thereof  respectively,  or  for 
any  of  the  materials  or  other  things  used  and  employed  in  finishing 
and  completing  the  same  (loss  or  damage  by  fire  excepted). 

In  witness  whereof,  the  said  parties  to  these  presents  have  here- 
unto set  their  hands  and  seals,  the  day  and  year  first  above  written. 

Signed  and  sealed  in  the  presence .  \Seal.} 

of  .  f/6Tea£.~] 

.  [Seal.-] 


201.  Bond,   Ohio  form. 

Know  all  men  by  these  presents,  that held  and  firmly  bound 

unto  in  the  sum  of dollars,  to  be  paid  to  the  said , 

executors,  administrators,  or  assigns,  for  which  payment,  well  and 
truly  to  be  made, bind heirs,  executors,  and  administra- 
tors,   firmly  by  these  presents. 

Sealed  with seal,  dated  the day  of ,  one  thousand 

eight  hundred  and . 

The  condition  of  the  above  obligation  is  such,  that ,  then 

the  above  obligation  to  be  void,  otherwise  to  remain  in  full  force 
and  virtue. 

Signed,  sealed,  and  acknowledged  in  the . 

presence  of  us, .  . 


310  LEGAL    INSTRUMENTS. 

202.  Assignment  of  judgment,  New  York  form. 

Know  all  men  by  these  presents,  that  whereas,  I, ,  of  the  city 

of ,  in  the  State  of  New  York,  did,  on  the day  .of , 

187^ — ,  recover  a  judgment  in  the Court  of  the  State  of  New 

York,  against for  the  sum  of dollars ;  which  said  judgment 

was  docketed  in  the  office  of  the  clerk  of  the  county  of  New  York 

on  the day  of .,  187 .     Now,  therefore,  I,  the  said , 

in  consideration  of  the  sum  of dollars,  to  me  paid,  the  receipt 

whereof  is  hereby  acknowledged,  have  assigned,  sold,  transferred, 

and  set  over  to ,  of  the  said  city  of ,  and  do  hereby  assign, 

sell,  transfer,  and  set  over  to  the  said ,  the  said  judgment, 

together  with  all  sums  of  money  thereon,  and  all  benefits  that  may 

be  obtained  thereunder.     And  I  do  constitute  the  said my 

attorney,  in  my  name  or  otherwise,  but  at  his  own  costs  and  expense, 
to  collect  and  enforce  said  judgment  for  his  own  benefit,  and  to 
give  all  proper  and  necessary  receipts,  releases,  and  acquittances 
therefor.  And  I  do  covenant  to  and  with  the  said ,  his  execu- 
tors, administrators,  and  assigns,  that  there  is  now  due  and  owing 

on  said  judgment  the  sum  of dollars,  with  interest  thereon 

from ,  and  that  I  have  not  received  nor  will  receive  any  part 

of  said  sum  of dollars  and  interest,  and  have  not  done  and 

will  not  do  any  act  or  thing  to  delay  or  hinder  the  collection  and 
enforcement  of  said  judgment. 

In  witness  whereof,  I  have  hereunto  set  my  hand  and  seal,  this 
day  of ,  one  thousand  eight  hundred  and  seventy . 

Sealed  and  delivered  in  presence .  [/&?«/.] 

of . 


203.  Assignment  of  judgment,  California  form. 

Know  all  men  by  these  presents,  that ,  of  the  State  of  Cali- 
fornia, the  party  of  the  first  part,  in  consideration  of  the  sum  of 

dollars, of  the  United  States  of  America,  to  me  in  hand 

paid  by ,  the  party  of  the  second  part,  the  receipt  of  which  is 

hereby  acknowledged,  has  sold,  assigned,  transferred,  and  set  over, 
and  by  these  presents  doth  sell,  assign,  transfer,  and  set  over,  unto 
the  said  party  of  the  second  part,  and  his  assigns,  a  certain  judg- 
ment, recovered  by  the  said  party  of  the  first  part,  on  the  —  —  day 

of ,  in  the  ye:ir  of  our  Lord  one  thousand  eight  hundred  and 

,  in  the Court  of  the ,  State  of ,  against ,  for 

the  sum  of dollars ,  and dollars  costs.     And  all  sums 

of  money  that  may  be  had  or  obtained  by  means  of  said  judgment, 
or  on  any  proceedings  to  be  had  thereupon.  And  the  said  party  of  the 
first  part  doth  hereby  constitute  and  appoint  the  said  party  of  the 
second  part,  and  his  assigns,  his  true  and  lawful  attorney,  irrevocable, 
with  power  of  substitution  and  revocation,  for  the  use  and  at  the 
proper  costs  and  charges  of  the  said  party  of  the  second  part,  to  ask, 
demand,  and  receive,  and  to  sue  out  executions,  and  take  all  lawful 
ways  and  means  for  the  recovery  of  the  money  due  or  to  become 


LEGAL    INSTRUMENTS.  311 

due  on  the  said  judgment ;  and  on  payment  to  acknowledge  satis- 
faction or  discharge  the  same.  And  attorneys  one  or  more  under 

for  the  purpose  aforesaid,  to  make  and  substitute,  and  at 

pleasure  to  revoke ;  hereby  ratifying  and  confirming  all  that  

said  attorney  or  substitute  shall  lawfully  do  in  the  premises.  And 

the  said  party  of  the  first  part  doth  covenant that  he  will  not 

collect  or  receive  the  same  or  any  part  thereof,  nor  release  or 
discharge  the  said  judgment,  but  will  own  and  aHow  all  lawful 
proceedings  therein,  the  said  party  of  the  second  part  saving  the 
said  party  of  the  first  part  harmless  of  and  from  any  costs  in  the 
premises. 

In  witness  whereof,  the  said  party  of  the  first  part  has  hereunto 

set  his  hand  and  seal,  the day  of ,  in  the  year  of  our  Lord 

one  thousand  eight  hundred  and . .  [Seal.] 

Signed,  sealed,  and  delivered  in  the 

£ 

presence  01 . 


204.  Assignment  of  judgment,  Illinois  form. 

This  indenture,  made  the day  of  ,  one  thousand  eight 

hundred  and  seventy ,  between ,  of ,  State  of  Illinois, 

party  of  the  first  part,  and ,  party  of  the  second  part.    Whereas, 

that  said  party  of  the  first  part, ,  on  the day  of ,  one 

thousand  eight  hundred  and ,  recovered  by  judgment ,  in 

the ,  against  ,  the  sum  of  ,  now  this  indenture  Wit- 

nesseth :  That  the  said  party  of  the  first  part,  in  consideration  of 

,  to  him  duly  paid,  has  sold,  and  by  these  presents  does  assign, 

transfer,  and  set  over  unto  the  said  party  of  the  second  part,  and 
his  assigns,  the  said  judgment,  and  all  sum  and  sums  of  money  that 
may  be  had  or  obtained  by  means  thereof,  or  on  any  proceedings  to 
l)e  had  thereupon.  And  the  said  party  of  the  first  part  does 
hereby  constitute  and  appoint  the  said  party  of  the  second  part, 
and  his  assigns,  his  true  and  lawful  attorney,  irrevocably,  with 
power  of  substitution  and  revocation,  for  the  use  and  at  the  proper 
costs  and  charges  of  the  said  party  of  the  second  part,  to  ask,  de- 
mand, and  receive,  and  to  sue  out  executions,  and  take  all  lawful 
ways  for  the  recovery  of  the  money  due  or  to  become  due  on  the 
said  judgment ;  and  on  payment  to  acknowledge  satisfaction  or 

discharge  the  same,  and  attorneys  one  or  more  under for  the 

purpose  aforesaid,  to  make  and  substitute,  and  at  pleasure  to 
revoke ;  hereby  ratifying  and  confirming  all  that  said  attor- 
ney or  substitute  shall  lawfully  do  in  the  premises.  And  the  said 
party  of  the  first  part  does  covenant,  that  there  is  now  due  on  the 
said  judgment  the  sum  of and  that  he  will  not  collect  or  re- 
ceive the  same,  or  any  part  thei-eof,  nor  release  or  discharge  the 
said  judgment,  but  will  own  and  allow  all  lawful  proceedings 
therein,  the  said  party  of  the  second  part  saving  the  said  party  of 
the  first  part  harmless  of  and  from  any  costs  in  the  premises. 


312  LEGAL    INSTRUMENTS. 

In  testimony  whereof,  the  party  of  the  first  part  has  hereunto  set 
his  hand  and  seal,  the  day  and  year  first  above  written. 

Sealed  and  delivered  in  presence .  [/Sea/.] 

of .  .  [Seal.] 


205.  Assignment  of  patent. 

Whereas, ,  of  the  city  of  Chicago,  in  the  county  of  Cook 

and   State   of  Illinois,   did   obtain  letters-patent   of    the   United 

States,  No. ,  for  ,  certain  ,  which  letters-patent  bear 

date   the   day  of  ,  eighteen   hundred   and  .     And 

whereas is  desirous  of  acquiring  an  interest  therein : 

Now,  therefore,  this  indenture  Witnesseth  :  That  for  and  in  con- 
sideration of  the  sum  of  dollars,  to  me  in  hand  paid,  the  re- 
ceipt whereof  is  hereby  acknowledged,  I  have  granted,  sold,  and 

set  over  unto  the  said ,  all  the  right,  title,  and  interest  which 

I  have  in  the  said  invention,  as  secured  to  me  by  said  letters-patent 

for,  to,  and  in  the ,  and  in  no  other  place  or  places ;  the  same 

to  be  held  and  enjoyed  by  the  said  ,  for  his  own  use   and 

behoof,  and  for  the  use  and  behoof  of  his  legal  representatives,  to 
the  full  end  of  the  term  for  which  said  letters-patent  are  granted, 

,  as  fully  and  entirely  as  the  same  would  have  been  held  and 

enjoyed  by  me  had  this  grant  and  sale  not  been  made . 

In  testimony  whereof,  I  have  hereunto  set  my  hand  and  affixed 
my  seal,  this day  of ,  A.  D.  187 . .  [Seal.] 

Sealed  and  delivered  in  the  .  [Seal.] 

presence  of . 


206.       Assignment  to  creditors — (From  J}  is/top's  JZurrell 
on  Assignments.) 

This  indenture,  made  this day  of  ,  in  the  year ,  be- 
tween   ,  of ,  party  of  the  first  part,  and ,  of ,  party 

of  the  second  part,  Witnesseth :  That  whereas,  the  party  of  the  first 
part  is  indebted  to  divers  persons  in  sundry  sums  of  money,  which  ho 
is  unable  to  pay  in  full,  and  is  desirous  of  providing  for  the  payment  of 
the  same  so  far  as  in  his  power,  by  an  assignment  of  all  his  property 
for  that  purpose.  Now  therefore,  the  said  party  of  the  first  part,  in 
consideration  of  the  premises,  an  dot'  the  sum  of  one  dollar,  to  him 
paid  by  the  party  of  the  second  part,  upon  the  ensealing  and  delivery 
of  these  presents,  the  receipt  whereof  is  hereby  acknowledged,  has 
granted,  bargained,  sold,  assigned,  transferred,  and  set  over,  and  by 
these  presents  does  grant,  bargain,  sell,  transfer,  assign,  and  set 
over,  unto  the  said  party  of  the  second  part,  his  successors  and  as- 
signs, all  and  singular  the  lands,  tenements,  hereditaments,  appur- 
tenances, goods,  chattels,  stock,  promissory  notes,  debts,  claims, 
demands,  property,  and  effects  of  every  description  belonging  to 
the  party  of  the  first  part,  wherever  the  same  may  be,  except 


LEGAL    INSTRUMENTS.  313 

such  property  as  is  exempt  by  law  from  le'vy  and  sale  under 
execution ;  to  have  and  to  hold  the  same,  and  every  part  thereof, 
unto  the  said  party  of  the  second  part,  his  successors  and  assigns, 
in  trust,  nevertheless  to  take  possession  of  the  same,  and  to  sell 
the  same  with  all  reasonable  dispatch,  and  to  convert  the  same  in- 
to money,  and  also  to  collect  all  such  debts  and  demands  hereby 
assigned  as  may  be  collectible,  and  with  and  out  of  the  proceeds 
of  such  sales  and  collections . 

1.  To  pay  and  discharge  all  the  just  and   reasonable  expenses, 
costs,  and  charges  of  executing  this   assignment,  and  of  carrying 
into  effect  the  trust  hereby  created,  together  with  a  lawful  com- 
mission to  the  party  of  the  second  part  for  his  services  in  executing 
said  trust. 

2.  To  pay  and  discharge  in  full,  if  the  residue  of  said  proceeds 
is  sufficient  for  that  purpose,  all  the  debts  and  liabilities  now  due 
or  to  grow  due  from  the  said  party  of  the  first  part,  with  all  inter- 
est-money due  or  to  grow  due ;  and  if  the  residue  of  said  proceeds 
shall  not  be  sufficient  to  pay  said  debts  and  liabilities  and  interest- 
moneys  in  full,  then  to  apply  the  said  residue  of  said  proceeds  to 
the  payment  of  said  debts  and  liabilities,  ratably  and  in  proportion. 

3.  And  if,  after  the  payment  of  all  the  said  debts  and  liabilities 
in  full,  there  be  any  remainder  of  said  property  or  proceeds,  to 
repay  and  return  the  same  to  the  said  party  of  the  first  part,  his 
executors,  administrators,  and  assigns. 

And  in  furtherance  of  the  premises,  the  said  party  of  the  first 
part  does  hereby  make,  constitute,  and  appoint  the  said  party  of 
the  second  part  his  true  and  lawful  attorney,  irrevocable,  with  full 
power  and  authority  to  do  all  acts  and  things  which  may  be  neces- 
sary in  the  premises  to  the  full  execution  of  the  trust  hereby  cre- 
ated, and  to  ask,  demand,  recover,  and  receive,  of  and  from  all  and 
every  person  or  persons,  all  property,  debts,  and  demands  due,  ow- 
ing, and  belonging  to  the  said  party  of  the  first  part,  and  to  give 
acquittances  and  discharges  for  the  same,  to  sue,  prosecute,  defend, 
and  implead  for  the  same,  and  to  execute,  acknowledge,  and  deliver 
all  necessary  deeds,  instruments,  and  conveyances.  And  the  said 
party  of  the  first  part  does  hereby  authorize  the  said  party  of  the 
second  part  to  sign  the  name  of  the  said  party  of  the  first  part  to 
any  check,  draft,  promissory  note,  or  other  instrument  in  writing 
which  is  payable  to  the  order  of  the  said  party  of  the  first  part,  or 
to  sign  the  name  of  the  party  of  the  first  part  to  any  instrument 
in  writing  whenever  it  shall  be  necessary*so  to  do  to  carry  into  ef- 
fect the  object,  design,  and  purpose  of  this  trust. 

The  said  party  of  the  second  part  doth  hereby  accept  the  trust 
created  and  reposed  in  him  by  this  instrument,  and  covenants  and 
agrees,  to  and  with  the  said  party  of  the  first  part,  that  he  will 
faithfully  and  without  delay  execute  the  trust  ci-eated  according  to 
the  best  of  his  skill,  knowledge,  and  ability. 


314  LEGAL    INSTRUMENTS. 

In  witness  whereof,  the  parties  to  these  presents  have  hereunto 
set  their  hands  and  seals  the  day  and  year  first  above  written. 
Sealed  and  delivered  in  presence  -- 

of  --  . 


STATE  OF  CALIFORNIA, 
City  and  County  of  San  Francisco,  ) 

On  this  —  -  day  of  -  ,  in  the  year  of  our  Lord  one  thousand 
eight  hundred  and  seventy  -  ,  before  me  came  -  ,  -  ,  to  me 
personally  known,  and  known  to  me  to  be  the  persons  described  in 
and  who  executed  the  above  instrument,  and  each  for  himself  sev- 
erally acknowledged  that  he  executed  the  same. 


207.  Lease,  California  form. 

This  indenture,  made  the day  of ,  in  the  year  of  our  Lord 

one  thousand  eight  hundred  and  seventy ,  Witnesseth :  that  I, 

,  of  the ,  State  of  California,  lessor,  do  hereby  lease,  demise, 

and  let  unto,  [description]  to  have  and  to  hold,  for  the  term  of  -  — , 

to  wit,  from  the day  of ,  187 ,  to  the day  of  -  — , 

187 ,  yielding  and  paying  therefor  the  rent  of dollars,  gold 

coin  of  the  United  States  of  America,  and  the  said  lessees  promise 

to  pay  the  rent  in  such as  follows,  to  wit :  ,  and  to  quit 

and  deliver  up  the  premises  to  the  lessor  or  his  agent,  or  attor- 
ney, peaceably  and  quietly,  at  the  end  of  the  term,  in  as  good  order 
and  condition  (reasonable  use  and  wear  thereof,  and  damages  by 
the  elements  excepted)  as  the  same  are  now  or  may  be  put  into ; 
and  to  pay  the  rent  as  above  stated  during  the  term  j  also  the  rent 
as  above  stated  for  such  further  time  as  the  lessee  may  hold  the 
same,  and  not  make  or  suffer  any  waste  thereof,  nor  lease  or  under- 
let, nor  permit  any  other  person  or  persons  to  occupy  or  improve 
the  same,  or  make  or  suffer  to  be  made  any  alteration  therein,  but 
with  the  approbation  of  the  lessor  thereto,  in  writing,  having 
been  first  obtained;  and  that  the  lessor  may  enter  to  view  and 
make  improvements,  and  to  expel  the  lessee  if  he  shall  fail  to 
pay  the  rent  as  aforesaid,  or  make  or  suffer  any  strip  or  waste 
thereof. 

And  should  default  be  made  in  the  payment  of  any  portion  of 

said  rent  when  due,  and  for days  thereafter,  the  said  lessor, 

his  agent  or  attorney,  may  re-enter  and  take  possession,  and  at 
his  option  terminate  this  lease.  .  \_Seal.~] 

feigned,  sealed,  and  delivered  in  — .  [>#ea£.] 

presence  of . 


208.  Lease^  California  form. 

This  indenture,  made  the day  of ,  in  the  year  of  our 

Lord  one  thousand  eight  hundred  and  seventy ,  between , 


LEGAL   INSTRUMENTS.  315 

of  ,  State  of  California,  the  party  of  the  first  part,  and , 

the  party  of  the  second  part,  Witnesseth :  That  the  said  party  of  the 
first  part  does  by  these  presents  lease  and  demise  unto  the  said 

party  of  the  second  part ,  with  the  appurtenances,  for  the  term 

of ,  from  the day  of ,  A.  D.  one  thousand  eight  hund- 
red and  seventy  ,  at  the  rent,  or  sum  of dollars, 

payable  in  gold  coin  of  the  United  States  of  America, in  ad- 
vance, on  the day  of  each  and  every  month  during  said  term 

.  And  it  is  hereby  agreed  that  if  any  rent  shall  be  due  and  un- 
paid, or  if  default  shall  be  made  in  any  of  the  covenants  herein 
contained,  then  it  shall  be  lawful  for  the  said  party  of  the  first  part 
to  re-enter  the  said  premises  and  to  remove  all  persons  therefrom. 
And  the  said  party  of  the  second  part  does  hereby  covenant,  prom- 
ise, and  agree  to  pay  to  the  said  party  of  the  first  part  the  said  rent 
in  the  manner  hereinbefore  specified.  And  not  to  let  or  underlet 
the  whole  or  any  part  of  the  said  premises  without  the  written 
consent  of  the  said  party  of  the  first  part.  And  that,  at  the  expi- 
ration of  said  term,  the  said  party  of  the  second  part  will  quit  and 
surrender  the  said  premises  in  as  good  state  and  condition  as  rea- 
sonable use  and  wear  thereof  will  permit  (damages  by  the  elements 
excepted). 

In  witness  whereof,  the  said  parties  have  hereunto  set  their  hands 
and  seals  the  day  and  year  first  above  written. 

Signed,  sealed,  and  delivered  in  the .  \Seal.~] 

presence  of .  .  [/ 


208.  Lease,  California  form. 

This  indenture,  made  the day  of  ,  in  the  year  of  our 

Lord  one  thousand  eight  hundred  and  seventy ,  between ,  of 

,  State  of  California,  and ,  the  party  of  the  second  part,  Wit- 
nesseth :  That  the  said  party  of  the  first  part,  for  and  in  considera- 
tion of  the  rents,  covenants,  and  agreements  hereinafter  mentioned, 
reserved,  and  contained  on  the  part  and  behalf  of  the  said  party  of 

the  second  part, executor.-,  administrators,  and  assigns,  to  be 

paid,  kept,  and  performed,  does  by  these  presents  grant,  demise,  and 
let  unto  the  said  party  of  the  second  part,  executors,  admin- 
istrators, arid  assigns,  all ~.  To  have  and  to  hold  the  said  prem- 
ises, with  the  appurtenances,  unto  the  said  party  of  the  second 

part,  his  executors,  administrators,  and  assigns,  from  the day 

of ,  one  thousand  eight  hundred  and  seventy ,  for  and  dur- 
ing the  full  term  of thence  next  ensuing,  and  fully  to  be  com- 
plete and  ended;  yielding  and  paying  therefor  unto  the  said  party 

of  the  first  part,  his  heirs  or  assigns  ,  during  the  said  term, 

the rent  or  sum  of .     Provided  always,  nevertheless,  that 

if  the  rent  above  reserved,  or  any  part  thereof,  shall  be  in  arrear 
or  unpaid  on  any  day  of  payment  whereon  the  same  ought  to  be 
paid  as  aforesaid,  or  if  default  shall  be  made  in  any  of  the  cove- 
nants herein  contained,  on  the  part  or  behalf  of  the  said  party  of 
the  second  part,  his  executors,  administrators,  and  assigns,  to  be 


316  LEGAL    INSTRUMENTS. 

pai<i,  kept,  and  performed,  then  and  from  thenceforth  it  shall  and 
may  be  lawful  for  the  said  party  of  the  first  part,  his  heirs  or  as- 
signs, into  and  upon  the  said  premises,  and  every  part  thereof, 
wholly  to  re-enter,  and  the  same  to  have  again,  repossess,  and  enjoy 
as  in  his  first  and  former  estate,  anything  hereinbefore  contained 
to  the  contrary  thereof  in  anywise  notwithstanding.  And  the  said 
party  of  the  second  part,  for  himself  and  his  heirs,  executors,  and 
administrators,  does  liefeby  covenant  and  agree  to  and  with  the 
said  party  of  the  first  part,  his  heirs  and  assigns,  that  the  said 
party  of  the  second  part,  his  executors,  administrators,  or  assigns, 

shall  and  will during  the  said  term,  well  and  truly  pay,  or 

cause  to  be  paid,  unto  the  said  party  of  the  first  part,  his  heirs  or 
assigns,  the  said  rent,  on  the  days  and  in  the  manner  limited  and 
prescribed  as  aforesaid  for  the  payment  thereof,  without  any  de- 
duction, fraud,  or  delay,  according  to  the  true  intent  and  meaning  of 
these  presents;  nor  lease,  nor  underlet,  nor  permit  any  other  per- 
sons to  occupy  or  improve  the  same,  or  make,  or  suffer  to  be  made, 

any  alteration  therein  but  with  the  approbation  of  the  lessor, 

having  been  first  obtained,  and  that  on  the  last  day  of  said  term  or 
other  sooner  determination  of  the  estate  hereby  granted,  the  said 
party  of  the  second  part,  his  executors,  administrators,  and  assigns, 
shall  and  will  peaceably  and  quietly  leave,  surrender,  and  yield  up 
unto  the  said  party  of  the  first  part,  his  heirs  or  assigns,  all  and., 
singular  the  said  premises  in  good  state  and  condition,  as  the  same 
are  now  or  may  be  put  into  (reasonable  use  and  wear  thereof,  and 
damage  by  the  elements  excepted).  And  the  said  party  of  the  first 
part,  for  himself  and  his  heirs  and  assigns,  docs  hereby  covenant 
and  agree,  that  the  said  party  of  the  second  part,  his  executors, 
administrators,  or  assigns,  paying  the  said  rent  and  performing  the 
covenants  and  agreements  aforesaid,  the  said  party  of  the  second 
part,  his  executors,  administrators,  and  assigns,  shall  and  may  at 
all  times  during  the  said  term,  peaceably  and  quietly  have,  hold,  and 
enjoy  the  said  premises,  without  any  manner  of  let,  suit,  trouble, 
or  hindrance  of  or  from  the  said  party  of  the  first  part,  his  heirs  or 
assigns. 

In  witness  whereof,  the    said   parties  have  hereunto  set  their 
hands  and  seals  the  day  and  year  first  above  written. 

Sealed  and  delivered  in  the  

presence  of .  


210.  Lease,  short  form,  as  in  Ohio. 

This  lease,  made  this day  of  ,  one  thousand  eight  hund- 
red and  ,  between  ,  of  the  State  of  Ohio,  of   the   first 

part,  and ,  of  the  second  part,  Witnesseth  :  That  the  said  party 

of  the  first  part  has  letten  and  by  these  presents  doth  grant,  de- 
mise, and  to  farm  let  unto  the  said  party  of  the  second  part,  — 

with  the  appurtenances,  for  the  term  of ,  from  the day  of 

,  one  thousand  eight  hundred  and ,  at  the  yearly  rent  or 

sum  of  ,  to  be  paid  in  equal payments.     And  it  is  agreed 


LEGAL    INSTRUMENTS.  317 

that  if  any  rent  shall  be  due  and  unpaid,  or  if  any  default  shall  be 
made  in  any  of  the  covenants  herein  contained,  then  it  shall  be 
lawful  for  the  said  party  of  the  first  part  to  re-enter  the  said  prem- 
ises, and  the  same  to  have  again,  repossess,  and  enjoy.  And  the 
said  party  of  the  second  part  doth  covenant  to  pay  to  the  said 
party  of  the  first  part  the  said  yearly  rent,  as  herein  specified. 
And*  that  at  the  expiration  of  the  said  term,  the  said  party  of  the 
second  part  will  quit  and  surrender  the  premises  hereby  demised, 
in  as  good  state  and  condition  as  reasonable  use  and  wear  thereof 
will  permit,  damages  by  tho  elements  cxcepted.  And  the  said 
party  of  the  first  part  doth  covenant  that  tho  said  party  of  the 
second  part,  on  paying  the  said  yearly  rent,  and  performing  the 
covenants  aforesaid,  shall  and  may  peaceably  and  quietly  have,  hold, 
and  enjoy  the  said  demised  premises  for  the  torm  aforesaid. 

In  witness  whereof,  the  said  parties  have  hereunto  set  their  hands 
and  seals,  on  the  day  and  year  first  above  written. 

Signed,  sealed,  and  acknowledged .  [/Seal. 

iu  presence  of  us  : . .  [Seal. 

. .  [/Seal.' 


211.  Lease,  long  form,  as  in  Ohio. 

This  lease,  made  this day  of ,  one  thousand  eight  hund- 
red and ,  between ,  of  the  first  part,  and ,  of  the  sec- 
ond part,  Witnesseth :  That  said  party  of  the  first  part,  in  consid- 
eration of  the  rents  and  covenants  hereinafter  contained,  and  by 
said  party  of  the  second  part,  and  his  assigns  to  be  paid  and  per- 
formed, does  hereby  grant,  demise,  and  lease  to  the  said  party  of 
the  second  part,  his  executors,  administrators,  and  assigns,  the 

premises  described  as  follows  :  ,  to  have  and  to  hold  the  same, 

with  the  appurtenances,  unto  the  said  party  of  the  second  part, 

his  executors,    administrators,    and  assigns,    from  ,  for   and 

during  the  full  term  of next  ensuing,  and  fully  to  be  completed 

and  ended ,  yielding  and  paying  therefor,  during  the  said  term, 

.     Provided,  however,  that  if  said  rent,  or  any  part  thereof, 

shall  remain  unpaid  for  days  after  it  shall  become  duo,  and 

without  demand  made  therefor ;  or  if  said  lessee  shall  assign  this 
lease,  or  underlet  said  leased  premises,  or  any  part  thereof,  or  if 
said  lessee's  interest  therein  shall  be  sold  under  execution,  or  other 
legal  process,  without  the  written  consent  of  said  lessor,  his  heirs 
or  assigns  first  had ;  it  shall  be  lawful  for  said  lessor,  his  heirs  or 
assigns,  into  said  premises  to  re-enter,  and  the  same  to  have  again, 
repossess,  and  enjoy,  as  in  his  first  and  former  estate  ;  and  there- 
upon this  lease,  and  everything  therein  contained  on  the  said  les- 
sor's behalf  to  be  done  and  performed,  shall  cease,  determine,  and 
be  utterly  void.  And  said  lessee,  for  his  executors,  administrators, 
and  assigns,  covenants  and  agrees  with  said  lessor,  his  heirs  and 
assigns,  as  follows,  that  is  to  say :  that  said  lessee  will  pay  said 
rents  in  manner  aforesaid,  except  said  premises  shall  be  destroyed  or 


318  LEGAL    INSTRUMENTS. 

rendered  untenantable  by  fire,  or  unavoidable  accident ;  that  he  will 
not  do  or  suffer  any  waste  therein;  that  he  will  not  assign  this  lease, 
or  underlet  said  premises,  or  any  part  thereof,  without  the  written 
consent  of  said  lessor,  and  that  at  the  end  of  said  term  he  will 
deliver  up  said  premises  in  as  good  order  and  condition  as  they 
now  are,  or  may  be  put  by  said  lessor,  reasonable  use  and  ordinary 
wear  and  tear  thereof,  and  damage  by  fire  and  other  unavoidable 

casualty  excepted  ;  and  further,  that  for  the  said  rents, ,  to  be 

paid  by  said  lessee  and  assigns,  a  lien  is  hereby  reserved  upon  the 
premises  hereby  leased,  and  the  interest  of  said  lessee  and  assigns 
in  and  to  the  same,  in  favor  of  said  lessor,  heirs  and  assigns,  prior 
and  preferable  to  any  and  all  other  liens  thereupon  whatsoever. 
And  said  lessor,  for  his  heirs,  executors,  administrators,  and  assigns, 
covenants  and  agrees  with  said  lessee,  his  executors  and  administra- 
tors, that  said  lessee,  paying  the  rents,  and  observing  and  keeping 
the  covenants  of  this  lease  on  his  part  to  be  kept,  shall  lawfully, 
peaceably,  and  quietly  hold,  occupy,  r.nd  enjoy  said  premises,  dur- 
ing said  term,  without  any  let,  hindrance,  ejection,  or  molestation 
by  said  lessor,  or  his  heirs,  or  any  person  or  persons  lawfully  claim- 
ing under  them. 

In  witness  whereof,  the  said  parties  hereto  have  hereunto  set 
their  hands  and  seals,  on  the  day  and  year  first  above  written. 

Signed,  sealed,  and  acknowledged  in                          — .  [Seal,' 
presence  of  us : .  .  \SeaL' 

~  '       •  '  '  •    I  tdCCtv* 


212.  Lease  with  security. 

It  is  hereby  agreed,  between 5  of ,  party  of  the  first  part, 

and ,  of ,  party  of  the  second  part,  as  follows :  The  said 

party  of  the  first  part,  for  and  in  consideration  of  the  rents  and 
covenants  herein  specified,  does  hereby  let  and  lease  to  the  said 
party  of  the  second  part  the  following  described  premises,  situate 

and  being  in  the ,  of  ,  in  the  county  of and  State 

of ,  [liero  describe  premises']  for  the  term  of from  and  after 

the ,  on  the  terms  and  conditions  hereinafter  mentioned,  to  be 

occupied  for ;  provided,  that  in  case  any  rent  shall  be  due  and 

unpaid,  or  if  default  shall  be  made  in  any  of  the  covenants  herein 
contained,  then  it  shall  be  lawful  for  the  said  party  of  the  first  part, 
or  his  certain  attorney,  to  re-enter  into  and  repossess  the  said 
premises,  and  the  said  party  of  the  second  part,  and  each  and  every 
other  occupant,  to  remove  and  put  out.  And  the  said  party  of  the 

second  part does  hereby  hire  the  said  premises  for  the  term 

of as  above  mentioned,  and  does  covenant  and  promise  to  pay 

to  the  said  party  of  the  first  part  the  annual  rent  of  -    —  dollars, 

in installments,  to  wit :  The  first  installment  to  be  paid  on 

the .  And  also  that  he,  the  said  .party  of  the  second  part,  will,  at 

his  own  expense,  during  the  continuance  of  this  lease,  keep  the  said 
premises  and  every  part  thereof  in  as  good  repair,  and  will  not 
re-lease  or  assign  this  lease,  or  sublet  said  premises,  or  any  portion 


LEGAL    INSTRUMENTS.  319 

thereof,  to  any  person  or  persons  whomsoever  "without  the  written 
consent  of  the  party  of  the  first  part,  and,  at  the  expiration  of  the 
term,  yield  and  deliver  up  tho  same  in  like  condition  as  when  taken, 
reasonable  use  and  wear  thereof  and  damages  by  the  elements 
excepted.  And  the  said  party  of  the  second  part  doth  hereby 
covenant  and  agree,  that  all  goods,  wares,  and  merchandise,  house- 
hold furniture,  fixtures,  or  other  property  which  are  or  shall  be 
placed  in  or  on  said  premises  by  him,  shall  be  liable,  and  this  lease 
shall  hereby  constitute  a  lien  or  mortgage  on  said  property,  to  secure 
the  rent  due  or  to  grow  due  on  this  lease.  And  I  hereby  authorize 
and  empower  the  said  party  of  the  first  part,  in  case  any  default  is 
made  in  the  payment  of  the  rent  above  specified,  or  any  of  the 
covenants  herein  contained  are  broken,  and  the  said  party  of  the 
first  part  may  enter  upon  said  premises,  or  take  any  of  said  mort- 
gaged property  wherever  the  same  may  be  found,  and  sell  and 
dispose  of  the  same  in  the  same  manner  as  in  the  case  of  chattel 
mortgage  on  default  thereof,  giving  six  days'  notice  of  the  time  and 

place  of  such  sale,  said  notice  to  be  posted  in public  places  in 

the  said of ,  for  the  best  price  he  can  obtain  for  the  same, 

and  retain  sufficient  money  to  pay  any  rent  due  hereon,  or  to  grow 
due  hereon,  together  with  the  costs  of  such  salu ;  and  the  said  party 
of  the  second  part  hereby  waives  all  benefit  of  any  exemption  law 
of  this  State  in  reference  to  the  sale  of  said  personal  property  for 
rent.  And  the  said  party  of  the  first  part  does  covenant  that  the 
said  party  of  the  second  part,  on  paying  the  aforesaid  installments 
and  performing  all  the  covenants  aforesaid,  shall  and  may  peaceably 
and  quietly  have,  hold,  and  enjoy  the  said  demised  premises  for  the 
term  aforesaid. 

Witness  our  hands  and  seals  this day  of ,  187 . 

.  [Seal.] 

.  [Seal-.'] 


213.  Assignment  of  lease. 

Know  all  men  by  these  presents,  that  I, ,  for  and  in  consider- 
ation of  the  sum  of  dollars,  to  me  duly  paid  by ,  the  re- 
ceipt whereof  is  hereby  acknowledged,  have  sold,  and  by  these 
presents  do  grant,  convey,  assign,  transfer,  and  set  over  unto  the 

said  ,  a  certain  indenture  of  lease,  bearing  date  the day 

of  ,  in  the  year  one  thousand  eight  hundred  and  seventy , 

made  by ,  and  recorded  in  Liber  No. ,  p.  — — ,  of  convey- 
ances in  the  office  of  the  recorder  [or  clerk]  of  county ;  to- 
gether with  all  and  singular  the  premises  therein  mentioned  and 
described  and  the  buildings  thereon,  with  the  appurtenances ;  the 
said  premises  being  described  as  follows,  to  wit :  [here  give  descrip- 
tion of  premises.']  To  have  and  to  hold  the  same  unto  .the  said 

,  and  his  assigns,  from  the day  of ,  for  and  during  all 

the  rest,  residue,  and  remainder  yet  to  come  of  and  in  the  term  of 

years  mentioned  in  the  said  indenture  of  lease,  subject  to  the 

conditions  and  pi'ovisions  therein  also  mentioned.     And  the  said 


320  LEGAL    INSTRUMENTS. 

grantor  does  hereby  covenant,  grant,  promise,  and  agree  to  and 

with  the  said  ,  and  his  assigns,  that  the  said  assigned  premises 

now  are  free  and  clear  of  and  from  all  former  and  other  gifts, 
grants,  bargains,  sales,  leases,  judgments,  executions,  back  rents, 
taxes,  assessments,  and  inoambranoca  whatsoever. 

In  witness  whereof,  the  said  grantor  has  hereunto  set  his  hand 
and  seal  this day  of  ,  in  the  year  of  our  Lord  one  thous- 
and eight  hundred  and  seventy . .  [Seal.'] 

Signed,  sealed,  and  acknowledged  in . 

presence  of  us  : . 


214.  Assignment  of  lease.  New  Yorle  form. 

Know  all  men  by  these  presents,  that  I, ,  of  the  city  of , 

county  of  and  State  of  New  York,  in  consideration  of  the 

sum  of dollars,  lawful  money  of  the  United  States,  to  me  paid, 

the  receipt  whereof  is  hereby  acknowledged,  have  sold,  assigned, 
transferred,  and  set  over,  and  by  these  presents  do  sell,  assign, 

transfer,  and  set  over  unto ,  of  the county  of  and 

State  aforesaid,  all  my  right,  title,  and  interest  in  and  to  a  certain 

indenture  of  lease,  bearing  date  the day  of ,  in  the  year 

one  thousand  eight  hundred  and  seventy ,  made  by of  the 

said  city  of ,  to  me,  the  said ,  of  a  certain  lot  and  buildings 

situate,  [here  insert  description  in  lease']  with  all  and  singular  the 
premises  therein  mentioned  and  described,  together  with  the  appur- 
tenances, which  said  lease  was  duly  recorded  in  the  register's  office 

of  the  city  and   county  of  New  York,  on  the day  of  , 

187 — r- ,  in  Liber of  conveyances,  at  page ,  to  have  and 

to  hold  the  same  unto  the  said ,  his  heirs,  executors,  adminis- 
trators, and  assigns,  to  his  and  their  own  proper  use,  benefit,  and 

behoof,  from  the day  of ,  187 ,  for  and  during  all  the 

rest,  residue,  and  remainder  of  the  term  of years,  described 

in  the  said  lease ;  subject,  nevertheless,  to  the  rents,  covenants, 
conditions,  and  provisions  in  said  lease  mentioned. 

In  witness  whereof,  I  have  hereunto  set  my  hand  and  seal,  this 
day  of ,  187 .  .  [Seal.] 

Sealed  and  delivered  in 
presence  of . 


215.  Will,   Ohio  form. 

The  last  will  and  testament  of ,  of ,  State  of  Ohio.   In 

the  name  of  the  benevolent  Father  of  all :  I,  the  said ,  being 

of  sound  and  disposing  mind  and  memory,  considering  the  uncei-- 
tainty  of  the  continuance  of  life,  and  desiring  to  make  such  dispo- 
sition of  my  worldly  estate  as  I  deem  best,  do  make,  publish,  and 
declare  this  to  be  my  last  will  and  testament :  hereby  revoking  and 
annulling  any  and  all  former  will  or  wills  whatsoever  by  me  made. 


LEGAL    INSTRUMENTS.  321 

First. — I  desire  all  my  just  debts  and  funeral  expenses  to  be  paid 
as  soon  as  possible  after  my  decease. 

Second. — I  give  and  bequeath . 

I  nominate  and  appoint to  be  the  executor  of  this  will . 

In  witness  whereof,  I  have  hereunto  set  my  hand  and  seal,  this 

day  of ,  in  the  year  eighteen  hundred  and . 

.  [Seal.] 

Signed,  sealed,  and  acknowledged  by as  and  for last 

will  and  testament,  in  our  presence,  and  subscribed  and  attested 
by  us,  as  witnesses,  in presence,  and  at request. 


216.  Will,  California  form. 

In  the  name  of  God,  Amen.  I, ,  of  the  City  and  County  of 

San  Francisco,  State  of  California,  of  the  age  of years,  and 

being  of  sound  and  disposing  mind,  and  not  under  any  restraint, 
or  the  influence  or  representation  of  any  person  whatever,  do  make, 
publish,  and  declare  this  my  last  will  and  testament,  in  manner 
following,  that  is  to  say  : 

First.— I  direct  that  my  body  be  decently  buried,  without  undue 
ceremony  or  ostentation,  but  with  proper  regard  to  my  station  and 
condition  in  life,  and  the  circumstances  of  my  estate. 

Secondly. — I  direct  that  my  executor,  hereinafter  named,  as  soon 
as  he  has  sufficient  funds  in  his  hands,  pay  my  funeral  expenses, 
and  the  expenses  of  my  last  sickness. 

Thirdly,  fourthly,  etc. 

Lastly. — I  hereby  appoint the  executor  of  this  my  last  will 

and  testament,  hereby  revoking  all  former  wills  by  me  made. 

In  witness  whereof,  I  have  hereunto  set  my  hand  and  seal  this 

day  of ,  in  the  year  of  our  Lord  one  thousand  eight 

hundred  and .  .  [£e«/.] 

The  foregoing  instrument,  consisting  of  Page  beside  this, 

was,  at  the  date  thereof,  by  the  said ,  signed  and  sealed  and 

published  as,  and  declared  to  be,  his  last  will  and  testament,  in 
presence  of  us,  who,  at  his  request,  and  in  his  presence,  and  in  the 
presence  of  each  other,  have  subscribed  our  names  as  witnesses 
thereto. 

,  residing  at . 

,  residing  at -. 


217.  Notary's  bond. 

Know  all  men  by  these  presents,  that  we,  R.  H.  Stinton,  as 
principal,  and  C.  K.  Garrison,  Austin  E.  Smith,  and  George  H. 
Hossefross,  as  sureties,  all  of  the  City  of  San  Francisco,  State  of 
California,  the  said  Stinton  in  the  sum  of  five  thousand  dollars,  and 
the  said  sureties  in  the  following-named  sums,  viz :  C.  K.  Garrison 

NOTARIES — 21. 


322  LEGAL    INSTRUMENTS. 

for  five  thousand  dollars,  and  A.  E.  Smith  and  George  H.  Hosse- 
fross  for  the  sum  of  twenty-five  hundred  dollars  each,  making,  in 
the  aggregate,  the  whole  penal  sum  of  five  thousand  dollars,  law- 
ful money  of  the  United  States,  to  be  paid  to  the  said  State  of 
California ;  for  which  payment,  well  and  truly  to  be  made,  we  bind 
ourselves,  our  heirs,  executors,  and  administrators,  jointly  and 
severally,  firmly  by  these  presents.  Sealed  with  our  seals,  and 
dated  this  twenty-sixth' day  of  March,  A.  D.  1874. 

The  condition  of  the  above  obligation  is  such,  that  whereas, 
John  B.  Weller,  Governor  of  California,  has  appointed  and  com- 
missioned the  above-bounden  R.  H.  Stinton  a  notary  public  in  and 
for  the  City  and  County  of  San  Francisco,  by  commission  dated 
the  third  day  of  March,  A.  D.  1874 :  Now,  therefore,  if  the  said  R. 
H.  Stinton  shall  well  and  truly  perform  the  duties  of  a  notary 
public,  as  aforesaid,  during  his  incumbency  of  said  office  under  and 
by  virtue  of  the  commission  aforesaid,  according  to  law,  and  shall 
faithfully  discharge  all  duties  which  may  be  required  of  him  by 
any  law  enacted  subsequently  to  the  execution  of  this  bond,  then 
this  obligation  shall  become  void;  otherwise,  to  remain  in  full  force 
and  effect. 

Witness  our  hands  and  seals,  this  twenty-sixth  day  of  March,  A.  D. 
1874.  R.  H.  STINTON.  [L.  s." 

C.  K.  GARRISON. 

A.  E.  SMITH. 

GEO.  H.  HOSSEFROSS. 


STATUTORY  FEES. 


STATUTORY  FEES. 


ALABAMA. 

Notaries  public  are  entitled  to  the  following  fees :  For  presenting 
a  bill  of  exchange  for  acceptance  or  payment,  fifty  cents ;  for  pro- 
testing any  bill  or  note  for  non-acceptance  or  non-payment,  one  dol- 
lar ;  for  notice  of  protest  to  each  party,  fifty  cents ;  for  every  other 
protest,  certificate,  registration  and  seal,  two  dollars  ;  for  any  oath, 
certificate  and  seal,  fifty  cents ;  for  giving  copies  from  register, 
twenty  cents  for  each  one  hundred  words,  and  at  that  rate ;  for 
every  certificate  and  seal  for  such  copy,  twenty-five  cents ;  for  giv- 
ing any  other  certificate,  and  affixing  seal  of  office,  fifty  cents ;  for 
taking  acknowledgment  of  deed  or  other  conveyance,  and  certify- 
ing the  same,  fifty  cents ;  for  taking  proof  of  conveyances,  the  same 
fees  as  are  allowed  to  other  officers  for  similar  services.  (Code  of 
1867,  Sec.  1090.) 

ARIZONA. 

SEC.  6.  The  drawing  and  copying  of  every  protest  for  the  non- 
payment of  a  promissory  note,  or  for  the  non-payment  or  non- 
acceptance  of  a  bill  of  exchange,  order,  draft,  or  check,  two  dollars ; 
for  drawing  and  serving  every  notice  of  the  non-payment  of  a 
promissory  note,  or  the  non-payment  or  non-acceptance  of  a  bill  of 
exchange,  order,  draft,  or  check,  when  persona^  service  is  made,  two 
dollars ;  but  when  service  is  made  by  depositing  such  notice  in  the 
post-office,  fifty  cents ;  for  recording  every  protest,  one  dollar ;  for 
drawing  an  affidavit  or  other  paper,  for  which  provision  is  not 
herein  made,  for  each  folio  of  one  hundred  words,  twenty  cents  ; 
for  copies  of  affidavits  or  other  papers,  for  every  folio  of  one  hund- 
red words,  twenty  cents ;  for  taking  an  acknowledgment  of  a  deed 
or  other  instrument,  one  dollar  for  the  first,  and  fifty  cents  for  each 
subsequent  signature ;  for  administering  an  oath  or  affirmation, 
fifty  cents,  (p.  510.) 

Fees  of  commissioners  to  take  testimony :  SEC.  8.  For  taking 
depositions,  for  each  folio,  twenty  cents ;  for  administering  an  oath 
or  affirmation,  fifty  cents ;  for  certificate  to  the  deposition,  one 
dollar.  (Compiled  Laws,  1864-71,  p.  509.) 

ARKANSAS. 

SEC.  2860.  Notaries  public  shall  be  allowed  fees  as  follows : 
For  noting  a  bill  of  exchange  or  promissory  note  for  protest,  fifty 

[325] 


326  STATUTORY   FEES. 

cents ;  for  entering  protest  of  the  same,  seventy-five  cents ;  for  reg- 
istering protest,  forty  cents  ;  for  notice  to  indorser  and  other  par- 
ties, each  fifty  cents ;  for  taking  each  acknowledgment,  twenty-five 
cents ;  for  each  marine  protest,  two  dollars  ;  for  other  protest  to 
secure  insurance,  two  dollars ;  for  affixing  notarial  seal,  twenty-five 
cents ;  for  copy  and  record  of  papers  in  his  office,  for  each  one 
hundred  words,  five  cents.  (Gantt's  Arkansas  Digest,  1874 ;  Act 
Dec.  23d,  1842,  Sec.  I5,,and  Act  Dec.  27th,  1856.) 

Officers  taking  depositions :  SEC.  2845.  The  fee  allowed  an 
officer  for  taking  depositions  shall  be  two  dollars  and  fifty  cents  for 
each  deposition,  and  five  cents  per  mile  for  each  mile  that  an  offi- 
cer may  have  to  travel  in  going  to  and  returning  from  the  place  of 
the  taking,  the  distance  to  be  estimated  from  his  office  ;  but  what- 
ever is  the  number  of  the  depositions  taken  in  one  day  for  the  same 
party  in  any  action,  the  fees  therefor  shall  not  exceed  six  dollars  ; 
and  if  the  officer  shall  be  engaged  more  than  one  day  in  taking  a 
deposition,  he  shall  receive  two  dollars  and  fifty  cents  per  day  for 
each  day  he  may  be  engaged  in  taking  one  deposition. 

SEC.  2846.  For  issuing  a  subpoena  or  warrant  of  arrest,  and 
for  summoning  or  arresting  the  witnesses,  the  same  fees  shall  be 
paid  as  are  allowed  the  clerks  and  sheriffs  for  similar  services. 
(Civil  Code,  Sees.  640,  641.) 

CALIFORNIA. 

SEC.  798.  The  fees  of  notaries  are  as  follows  :  For  drawing  and 
copying  every  protest  for  the  non-payment  of  a  promissory  note, 
or  for  the  non-payment  or  non-acceptance  of  a  bill  of  exchange, 
draft,  or  check,  two  dollars ;  for  drawing  and  serving  every  notice 
of  non-payment  of  a  promissory  note,  or  the  non-payment  or  non- 
acceptance  of  a  bill  of  exchange,  order,  draft  or  check,  one  dollar  ; 
for  recording  every  protest,  one  dollar ;  for  drawing  an  affidavit, 
deposition  or  other  paper^  for  which  provision  is  not  herein  made, 
for  each  folio, thirty  cents;  for  taking  an  acknowledgment  or  proof 
of  a  deed,  or  other  instrument,  to  include  the  seal  and  the  writing 
of  the  certificate,  for  the  first  two  signatures,  one  dollar  each,  and 
for  each  additional  signature,  fifty  cents ;  for  administering  an  oath 
or  affirmation,  fifty  cents ;  for  every  certificate,  to  include  writing 
the  same  and  the  seal,  one  dollar.  (Amendment  approved  March 
16th,  1874.) 

COLORADO. 

SEC.  5.  For  noting  a  bond,  bill  of  exchange,  or  promissory  note 
for  protest,  one  dollar ;  for  each  protest  and  record  of  the  same, 
one  dollar  and  fifty  cents ;  for  each  notice  of  protest,  one  dollar ; 
ior  each  certificate  and  seal,  seventy-five  cents ;  for  each  acknowl- 
edgment of  a  deed  or  other  instrument  in  writing,  one  dollar ;  for 
taking  depositions,  per  folio,  twenty  cents ;  for  swearing  any  per- 
son to  an  affidavit,  with  certificate  and  seal,  one  dollar ;  for  all 
other  services,  the  same  fees  as  justices  of  the  peace  for  like  serv- 
ices. (Revised  Stats,  of  Colorado,  1868,  p.  319,  Chap.  31.) 


STATUTORY   FEES.  327 


CONNECTICUT. 

The  fees  of  notaries  public  shall  be :  For  a  marine  protest,  two 
dollars  ;  for  entering  a  protest  of  a  bill  or  note,  or  noting  without 
protest,  or  administering  an  oath  to  a  pensioner  and  taking  the 
acknowledgment  on  his  papers  under  tho  notarial  seal,  fifty  cents ; 
for  noting  a  bill  or  note  for  protest,  recording  a  pi-otest,  each  notice 
to  indorsers,  makers,  drawers,  or  acceptors,  affixing  the  notarial 
seal,  for  each  certificate,  twenty-five  cents ;  for  travel,  tea  cents  a 
mile ;  for  copies,  the  same  as  clerks  of  the  Superior  Court.  (Gen- 
eral Stats.  1875,  p.  178.)  [For  taking  acknowledgment  of  any  in- 
strument, twenty-five  cents.] 

DAKOTA. 

SEC.  19.  For  each  protest,  one  dollar  and  fifty  cents ;  for  re- 
cording the  same,  fifty  cents ;  for  taking  affidavit  and  seal,  twenty- 
five  cents ;  for  administering  oath  or  affirmation,  ten  cents ;  for 
taking  deposition,  each  ten  words,  one  and  a  half  cents ;  for  each 
certificate  and  seal,  twenty-five  cents ;  for  taking  acknowledgment 
of  deed  or  other  instrument,  fifty  cents.  (8th  Sess.  1868-9,  p. 
193.) 

DELAWARE. 

SEC.  40.  For  protest  of  a  promissory  note,  bill  of  exchange, 
check,  or  draft,  and  registering  the  same,  eighty  cents ;  giving  notice 
of  a  protest,  personal  or  otherwise,  and  registering  the  notice  and 
manner  thereof,  for  each  notice,  twenty  cents ;  for  exemplification, 
underhand  and  notarial  seal,  of  such  protest,  twenty-five  cents; 
protest  of  a  foreign  bill  of  exchange,  (to  wit,  a  bill  of  exchange  drawn 
beyond  sea)  and  registering  the  same,  one  dollar ;  giving  notice  of 
such  protest,  personal  or  otherwise,  and  registering  the  notice  and 
manner  thereof,  for  each  notice,  thirty-seven  cents ;  exemplification 
under  hand  and  notarial  seal  of  such  protest,  seventy-five  cents; 
registering  a  bill  of  exchange,  promissory  note,  bank-note,  or  check, 
where  no  fee  for  probate  is  charged,  twenty  cents ;  registering  a 
common  sea  protest,  seventy-five  cents ;  registering  a  foreign  sea 
protest,  one  dollar ;  registering  a  protest  against  merchant,  or  other 
person,  for  detaining  vessel  beyond  proper  time,  with  answers  and 
persistence  to  the  protest,  four  dollars ;  exemplification  under  hand 
and  notarial  seal  of  either  of  said  three  last  mentioned  protests,  one 
dollar,  and  additionally  two  cents  a  line;  registering  an  obligation, 
letter  of  attorney,  bill  of  sale,  or  other  writing  of  similar  length, 
one  dollar ;  taking  and  certifying,  under  hand  and  notarial  seal,  the 
acknowledgment  of  a  deed,  letter  of  attorney,  or  other  instrument, 
one  dollar;  administering  and  certifying,  under  hand  and  notarial 
seal,  oath  or  affirmation,  fifty  cents ;  drawing  affidavit,  or  deposition, 
two  cents  a  line ;  taking  depositions  under  order  of  Court,  a  sum  to 
be  taxed  by  the  Court ;  certificate  under  hand  and  notarial  seal, 
when  no  other  service  for  which  a  fee  is  allowed*is  performed,  thir- 
ty-five cents;  (Revd.  Code,  1874,  p.  760-1,  Chap:  125.) 


328  STATUTORY    TEES. 

Chapter  36.  Notaries  public  and  commissioners  of  deeds :  Sec. 
7.  Their  fees  shall  be :  For  taking  the  acknowledgment  of  a  deed, 
one  dollar ;  taking  and  certifying  an  affidavit,  fifty  cents  ;  taking 
depositions,  a  reasonable  sum,  to  be  taxed  by  the  Court  from  which 
the  commission  issued.  (Ibid.  p.  183.) 

DISTRICT  OF  COLUMBIA. 

SEC.  900.  The  fees  of  notaries  public  shall  be  :  For  each  certifi- 
cate and  seal,  fifty  cents ;  taking  depositions  or  other  writings,  for 
each  one  hundred  words,  ten  cents ;  administering  an  oath,  fifteen 
cents ;  taking  acknowledgment  of  a  deed  or  power  of  attorney, 
with  certificate  thereof,  fifty  cents ;  for  every  protest  of  a  bill  of 
exchange  or  promissory  note  and  recording  the  same,  one  dollar  and 
seventy-five  cents ;  each  notice  of  protest,  ten  cents ;  each  demand 
for  acceptance  or  payment,  if  accepted  or  paid,  one  dollar,  to  be 
paid  by  the  party  accepting  or  paying  the  same ;  each  noting  of 
protest,  one  dollar.  (Rev.  Stats.  D.  C.  p.  116.) 

SEC.  991.  Any  notary  pubjic  who  shall  take  a  higher  fee  than  is 
prescribed  by  the  preceding  section,  shall  pay  a  fine  of  one  hundred 
dollars,  and  be  removed  from  office  by  the  Supreme  Court  of  the 
District. 

FLORIDA. 

SEC.  27.  Protesting  bill  of  exchange  or  promissory  note,  and 
registering  same,  one  dollar;  noting  bill  of  exchange  for  non- 
acceptance  or  non-payment,  fifty  cents;  administering  each  oath, 
ten  cents ;  attending  at  a  demand,  tender,  or  deposit,  and  noting 
same,  one  dollar ;  noting  protest  of  a  captain  of  a  vessel,  one  dollar ; 
entering  protest  and  copy,  five  dollars;  registering  foreign  pro- 
tested bill  or  protest,  fifty  cents ;  each  certificate  with  seal  thereto, 
one  dollar ;  each  order  for  survey,  one  dollar ;  copying  any  paper 
necessary  to  be  copied,  the  same  as  allowed  clerks  of  the  Supreme 
Court  and  Circuit  Courts.  (Bush's  Digest,  1872,  p.  195,  Chap.  36.) 

GEORGIA. 

SEC.  3704.  The  fees  of  notaries  public  are  as  follows,  to  wit : 
For  every  protest,  oath  included,  two  dollars ;  for  noting  a  protest, 
one  dollar;  for  registering  a  protest,  per  copy  sheet,  ten  cents;  for 
copy  of  a  protest,  per  copy  sheet,  ten  cents ;  for  administering  an 
oath  in  any  case,  thirty  cents ;  for  each  attendance  on  any  person, 
to  make  proof  as  a  notary  public,  and  certify  the  same,  one  dollar; 
for  every  other  certificate,  fifty  cents.  The  cost  of  registering  is 
likewise  a  charge  against  the  party  noted  and  protested,  and  must 
be  charged  in  the  costs  at  the  same  time,  and  paid  to  the  notary 
by  the  party  for  whose  benefit  the  noting  and  protesting  was  done. 

All  other  registering  must  be  paid  for  by  the  party  who  has  the 
service  performed.  The  fees  for  all  official  acts  which  the  notary 
is  allowed  to  perform  are  the  same  as  those  prescribed  for  any 
officers  who  are  likewise  permitted  to  perform  them. 

SEC.  3707.   Forfeiture   for   excessive   charges :    If   such   officer 


STATUTORY   FEES.  329 

or  person  shall  take  or  demand  any  greater*  fee  than  the  law 
allows,  or  fee  for  services  not  performed,  lie  forfeits  fifty  dollars, 
to  be  sued  for  and  recovered  as  prescribed  in  the  preceding  section. 

SEC.  3708.  Table  of  fees  to  be  kept  in  office:  Every  public 
oificer  must  constantly  keep,  in  a  conspicuous  place  in  his  office,  or 
place  where  he  usually  executes  the  business  thereof,  a  table  of  his 
fees,  in  fair  words  and  figures ;  and,  on  failure  to  do  so,  he  forfeits 
one  dollar  per  day  for  every  day  he  so  neglects,  to  be  recovered  at 
the  suit  of  any  informer,  to  whom  the  whole  recovery  shall  go : 
Provided,  that  every  public  officer  who  may  keep,  in  a  conspicuous 
place  in  his  office,  or  place  where  he  usually  executes  the  business 
thereof,  a  copy  of  the  Code  of  Georgia,  shall  be  held  and  construed 
to  have  complied  with  the  requirements  of  this  section. 

SEC.  3710.  Penalty  for  improper  charges :  Any  public  officer 
who  shall  charge  or  take  fees  not  allowed  by  law,  or  for  service  not 
performed,  shall,  on  conviction  or  proof  thereof,  be  dismissed  from 
office. 

IDAHO. 

SEC.  17.  Each  notary  public  shall  receive  the  following  fees  for 
his  services,  namely  :  For  drawing  and  copying  every  protest  for 
the  non-payment  of  a  promissory  note,  or  for  the  non-payment  or 
non-acceptance  of  a  bill  of  exchange,  draft,  or  check,  three  dollars ; 
for  drawing  and  serving  every  notice  of  non-payment  of  a  promis- 
sory note,  or  of  the  non-acceptance  of  a  bill  of  exchange,  order, 
draft,  or  check,  two  dollars  ;  for  recording  every  protest,  two  dol- 
lars ;  for  drawing  an  affidavit,  deposition,  or  other  paper,  for  which 
provision  is  not  herein  made,  for  each  folio,  fifty  cents ;  for  all  other 
services,  the  same  fees  as  are  allowed  by  the  laws  of  this  Territory 
to  other  officers  for  like  services."  (Rev.  Laws,  1874-5,  p.  819.) 

ILLINOIS. 

For  taking  acknowledgment  of  a  deed,  mortgage,  power  of  at- 
torney, or  other  writing,  with  certificate  under  seal,  twenty-five 
cents  ;  for  noting  a  bond  or  promissory  note  or  bill  of  exchange  for 
protest,  twenty-five  cents  ;  for  protesting  .bond  or  bill  of  exchange, 
seventy-five  cents ;  for  noting  protest,  twenty-five  cents ;  for  noting 
marine  protest  and  furnishing  one  copy  thereof,  one  dollar ;  for 
extending  marine  protest  and  furnishing  one  copy  thereof,  four 
dollars  ;  for  each  additional  copy  furnished,  one  dollar  ;  for  giving 
notice  to  drawees  and  indorsers,  twenty-five  cents  each ;  for  any 
other  certificate  under  seal,  twenty-five  cents ;  for  administering 
oath  to  an  affiant,  twenty-five  cents ;  for  taking  depositions  for  each 
one  hundred  words  in  counties  of  first  and  second  classes,  fifteen 
cents;  and  in  counties  of  third  class,  ten  cents.  (Rev.  Stats.  1874, 
p.  513,  Sec.  28.) 

IXDIANA. 

SEC.  29.  The  fees  of  notaries  public  and  commissioners  of 
deeds  shull  be  as  follows,  to  wit :  For  each  certificate  and  seal, 
fifty  cents ;  taking  depositions  or  other  writing,  for  each  one  hund- 


330  STATUTORY   FEES. 

red  words,  ten  cents ;  administering  an  oath,  ten  cents ;  for  each 
protest,  fifty  cents ;  each  notice  thereof,  twenty-five  eents ;  when 
required,  for  each  one  hundred  words  in  copying  or  recording  such 
protest,  ten  cents ;  taking  an  acknowledgment  of  a  deed,  mortgage, 
or  power  of  attorney,  or  other  instrument  and  seal,  twenty-five 
cents.  (Davis'  Statutes,  1876,  Vol.  1,  p.  477.) 

SEC.  1.  Be  it  enacted  by  the  General  Assembly  of  the  State 
of  Indiana:  That  no  ,clerk  of  any  Court,  notary  public,  justice 
of  the  peace,  or  any  other  person  authorized  to  administer  oaths, 
shall  be  allowed  to  charge  any  discharged  soldier  or  seaman, 
or  the  widow,  orphan,  or  the  legal  representative  of  a  discharged 
or  deceased  soldier  or  sailor,  more  than  fifteen  cents  for  adminis- 
tering any  oath,  or  giving  any  official  certificate  for  the  procuring 
of  any  pension,  bounty,  or  back  pay. 

SEC.  2.  Any  such  officer  who  may  accept  more  than  fifteen 
cents  for  any  such  service,  shall  be  fined  in  a  sum  not  less  than 
twenty-five  dollars,  nor  more  than  fifty  dollars. 

SEC.  3.  It  is  hereby  declared  that  an  emergency  exists  for  the 
immediate  taking  effect  of  this  act ;  and  the  same  is  hereby  de- 
clared to  be  in  full  force  from  and  after  its  passage. 

IOWA. 

3801.  Notaries  public  shall  be  entitled  to  charge  and  receive  the 
following  fees :  For  every  protest  of  a  bill  or  note,  seventy-five 
cents ;  for  registei'ing  any  protest,  fifty  cents  ;  for  being  present  at 
a  demand,  tender,  or  deposit,  and  noting  the  same,  fifty  cents  ;  for 
administering  an  oath,  five  cents ;  for  certifying  to  the  same  xinder 
his  official  seal,  twenty-five  cents ;  for  certificate  under  seal,  twenty- 
five  cents ;  for  other  services,  the  same  fees  as  are  allowed  justices 
of  the  peace  for  similar  services.  (Code  of  1873,  p.  589.) 

[Fed  of  justices  for  each  certificate  or  acknowledgment,  twenty- 
five  cents.] 

-     KANSAS. 

SEC.  9.  Notaries  public  shall  receive  for  protest,  and  record  of 
the  same,  fifty  cents ;  for  each  notice  of  protest,  fifty  cents ;  for 
certificate  and  seal,  fifty  cents ;  for  all  other  services,  the  same  fees 
as  are  allowed  to  the  clerk  of  the  District  Court  for  like  services. 
(Gen.  Stats.  1868,  p.  480.) 

[Taking  and  certifying  affidavit,  twenty-five  cents ;  certificate 
and  seal,  fifty  cents.] 

KENTUCKY.. 

SEC.  1.  The  fees  of  notaries  public  shall  be  as  follows,  viz:  For 
every  attestation,  protestation,  or  taking  acknowledgment  of  any 
instrument  of  writing,  and  certifying  the  same  under  seal,  fifty 
cents;  for  recording  the  same  in  a  book  to  be  kept  for  that  pur- 
pose, seventy-five  cents;  for  each  notice  of  protest,  twenty-five 
cents;  for  administering  an  oath  and  certificate  thereof,  twenty 
cents.  (Gen.  Stats.  1873,  p.  472.) 


STATUTORY   FEES.  331 

SEC.  7.  For  recording  each  protest,  as  required  by  the  first  sec- 
tion of  this  act,  the  notary  public  shall  be  allowed,  in  addition  to 
iiis  present  fees,  the  sum  of  seventy-five  cents  ;  but  shall  forfeit  all 
his  fees  by  failure  to  record  his  protest,  as  required  by  the  first  sec- 
tion of  this  act,  and  also  be  fined  for  each  failure  the  sum  of  five 
dollars,  to  be  recovered  by  warrant,  in  the  name  of  the  Common- 
wealth, before  any  justice  of  the  peace  of  the  county  where  such 
failure  occurs.  (Id.  p.  678.) 

LOUISIANA. 

SEC.  770.  Every  notary  public,  recorder  of  mortgages,  and 
parish  recorder  acting  as  notary  public  or  recorder  of  mortgages 
in  this  State,  shall  be  entitled  to  demand  and  receive  the  following 
fees  of  office,  and  no  more,  to  wit :  For  writing  original  acts  of 
any  kind,  including  recording  the  same,  for  every  hundred  words,  ' 
twenty-five  cents;  for  every  necessary  seal  and  certificate  to  every 
notarial  act,  seventy-five  cents;  for  making  copies  of  all  official 
documents,  ten  cents  for  every  hundred  words ;  for  seal  and  certifi- 
cate to  any  copy,  fifty  cents ;  for  proving  up  an  act  under  private 
signature,  fifty  cents  ;  for  recording  an  act  under  private  signature, 
ten  cents  for  every  hundred  words ;  for  certificate  of  record  and 
seal  to  an  act  under  private  signature,  fifty  cents ;  for  recording 
acts  under  private  signature,  which  have  been  proved  up  otherwise 
than  before  the  parish  recorder  or  notary,  ten  cents  for  every  hund- 
red words ;  for  certificate  of  mortgage  with  seal,  one  dollar ;  and 
for  every  hundred  words,  after  the  first  four  hundred,  twenty 
cents;  for  canceling  a  mortgage,  one  dollar.  The  parties  to  a 
notarial  act  may,  by  written  clause  in  the  act,  dispense  with  the 
certificate  of  mortgage  required  by  article  three  thousand  three 
hundred  and  twenty-eight  of  the  Civil  Code,  and  the  notary  or 
parish  recorder  shall  not  in  such  case  be  entitled  to  charge  for  such 
certificate  For  fixing  seal  on  effects  of  intestates,  two  dollars; 
for  removing  the  same,  with proc&s  verbal,  one  dollar;  for  swear- 
ing each  appraiser  or  expert,  twenty-five  cents.  (Rev.  Stats.  1876.) 

MAINE. 

SEC.  8.  For  each  protest  of  a  bill  or  note,  notifying  parties, 
making  his  certificate  thereof  in  due  form,  and  recording  his  pro- 
ceedings, a  notary  public  shall  be  entitled  to  one  dollar  and  fifty 
cents,  and  no  more ;  and  all  penalties  herein  provided  shall  accrue 
half  to  the  State,  and  half  to  the  person  suing  therefor."  (Revised 
Statutes,  1871,  p.  328,  Sec.  8.) 

MARYLAND. 

SEC.  21.  Notaries  shall  be  entitled  to  demand  and  receive  the 
following  fees,  to  wit:  For  protesting  any  note,  draft,  bill  of 
exchange,  or  check  for  non-acceptance  or  non-payment,  two  dollars  ; 
for  drawing  all  proceedings  not  exceeding  two  sides,  fifty  cents  ; 
for  drawing  all  proceedings  exceeding  two  sides,  per  side,  twenty 


332  STATUTORY    FEES. 

five  cents ;  for  registering  or  copying  proceedings,  for  every  side, 
ten  cents ;  for  presenting  a  bill  of  exchange  for  acceptance,  if  ac- 
cepted and  not  afterward  protested  for  non-payment,  one  dollar ; 
for  noting  a  bill  for  non-acceptance,  if  not  protested  for  non- 
acceptance  or  non-payment,  one  dollar ;  for  noting  a  marine  pro- 
test, one  dollar ;  for  affixing  notaries'  seal,  fifty  cents ;  for  every 
search  where  no  copy  is  made,  twenty-five  cents;  for  administering 
an  oath  or  taking  an  acknowledgment,  twelve  and  one-half  cents. 
For  all  other  acts  and'  service,  in  proportion  to  the  aforesaid  fees, 
to  be  paid  at  the  time  of  doing  the  same.  For  going  any  distance 
more  than  three  miles  from  his  place  of  residence,  per  mile,  twenty 
cents.  (Code  1860,  Vol.  1,  p.  296.) 

MASSACHUSETTS. 

SEC.  13.  For  the  protest  of  a  bill  of  exchange,  order,  draft,  or 
check,  for  non-acceptance  or  non-payment,  or  of  a  promissory  note 
for  non-payment,  if  the  amount  thereof  is  five  hundred  dollars  or 
more,  one  dollar ;  if  it  is  less  than  five  hundred,  fifty  cents ;  for 
recording  the  same,  fifty  cents  ;  for  noting  the  non-acceptance  or 
non-payment  of  a  bill  of  exchange,  order,  draft,  or  check,  or  the 
non-payment  of  a  promissory  note,  seventy-five  cents;  for  each 
notice  of  the  non-acceptance  or  non-payment  of  a  bill,  order,  draft, 
check,  or  note,  given  to  a  party  liable  for  the  payment  thereof, 
twenty-five  cents  :  provided,  that'  the  whole  cost  of  protest,  includ- 
ing necessary  notices  and  the  record,  when  the  bill,  order,  draft, 
check,  or  note  is  of  the  amount  of  five  hundred  dollars  or 
upwards,  shall  not  exceed  two  dollars ;  and  when  it  is  less  than  five 
hundred  dollars,  shall  not  exceed  one  dollar  and  fifty  cents ;  and 
the  whole  cost  of  noting,  including  recording  and  notices,  shall  in 
no  case  exceed  one  dollar  and  twenty-five  cents.  (Gen.  Stats.  1860, 
p.  787.) 

SEC.  2.  Taking  a  deposition,  fifty  cents ;  for  writing  the  deposi- 
tion and  caption,  at  theT,ate  of  twelve  cents  a  page ;  and  for  notice 
to  the  adverse  party,  twenty  cents ;  the  justice  shall  certify  on  the 
deposition  his  own  fees,  and  those  of  the  deponent ;  for  administer- 
ing an  oath  required  by  law,  except  on  a  trial  or  examination  before 
himself,  whether  to  one  or  more  persons  at  the  same  time,  twenty 
cents;  taking  the  acknowledgment  of  a  deed,  by  one  or  more 
grantors,  if  done  at  the  same  time,  seventeen  cents.  (Id.  p.  784.) 

MICHIGAN. 

7446.  For  drawing  and  copying  of  protest  of  the  non-pay- 
ment of  a  promissory  note  or  bill  of  exchange,  or  of  the  non- 
acceptance  of  such  bill,  fifty  cents,  in  £he  cases  where,  by  law,  such 
protest  is  necessary,  but  in  no  other  case  ;  for  drawing  and  copy  of 
every  other  protest,  twenty-five  cents;  for  drawing  copy,  and 
serving  every  notice  of  non-payment  of  a  note,  or  non-acceptance 
of  a  bill,  twenty-five  cents;  for  drawing  any  affidavit,  or  other 
paper  or  proceeding,  for  which  provision  is  not  herein  made, 


STATUTORY   FEES.  333 

twenty  cents  for  each  folio,  and  for  copying  the  .same,  six  cents  for 
each  folio  ;  for  taking  the  acknowledgment  of  deeds,  and  for  other 
services  authorized  by  law,  the  same  fees  as  are  allowed  to  other 
officers  for  similar  services.  (Comp.  L.  1871,  p.  2052.) 

SEC.  1.  The  people  of  the  State  of  Michigan  enact :  That  no 
judge  of  the  probate,  clerk  of  any  Court,  justice  of  the  peace, 
notary  public,  or  any  person  authorized  to  administer  oaths,  under 
and  by  the  provisions  of  the  laws  of  this  State,  shall  be  allowed  to 
charge  any  discharged  soldier,  seaman,  or  the  legal  representa- 
tive of  a  discharged  or  deceased  soldier  or  sailor,  more  than  fifteen 
cents  for  administering  any  oath,  or  giving  any  official  certificate, 
for  the  procurement  or  obtaining  payment  of  any  pension,  bounty, 
or  back  pay. 

SEC.  2.  That  no  judge  of  probate,  clerk  of  any  Court,  justice  of 
the  peace,  notary  public,  or  any  person  authorized  to  administer 
oaths,  under  and  by  the  provisions  of  the  laws  of  this  State,  shall 
be  allowed  to  charge  any  widow  of  a  deceased  soldier,  or  guar- 
dian to  minor  children,  or  other  legal  representative  of  such  de- 
ceased soldier  or  sailor,  more  than  twenty-five  cents  for  the  oath  or 
oaths  of  such  widow,  guardian,  or  legal  representative  and  their 
witnesses;  nor  shall  it  be  lawful  for  a  judge  of  probate  to  charge 
more  than  fifteen  cents  for  a  certificate  of  guardianship,  administra- 
tion, or  of  the  death  of  a  pensioner,  or  the  widow,  children,  or 
other  legal  representatives  of  a  pensioner,  for  the  purpose  of  pro- 
curing the  payment  of  any  installment  of  pension. 

SEC.  3.  Any  such  officer  who  may  ask  or  accept  more  than  the 
fees  enumerated  in  sections  one  and  two  of  this  act  for  any  such 
service,  shall,  on  conviction  thereof,  be  adjudged  guilty  of  a  misde- 
meanor. (Comp.  L.  p.  2059 ;  Stats.  1871,  p.  246.) 

MINNESOTA. 

SEC.  14.  For  drawing  and  copy  of  protest  of  the  non-payment 
of  a  promissory  note,  or  bill  of  exchange,  or  of  the  non-acceptance 
of  such  bill,  one  dollar,  in  the  cases  where  by  law  such  protest  is 
necessary;  for -drawing,  and  a  copy  of  every  other  protest,  fifty 
cents ;  for  drawing,  copy,  and  serving  every  notice  of  non-payment 
of  note  or  non-acceptance  of  a  bill,  fifty  cents ;  drawing  any  affida- 
vit or  other  paper  or  proceeding,  for  which  provision  is  not  herein 
made,  twenty  cents  for  each  folio,  and  copying  the  same,  six  cents 
for  each  folio  ;  for  each  oath  administered,  twenty-five  cents ;  tak- 
ing the  acknowledgment  of  deeds,  and  for  other  services  author- 
ized by  law,  the  same  fees  as  are  allowed  to  other  officers  for 
similar  services;  recording  each  instrument  required  by  law  to  be 
recorded  by  him,  ten  cents  per  folio.  (Bissell's  Stats.  1873,  Vol. 
2,  p.  970.) 

[Fees  of  justices  for  taking  acknowledgments,  twenty-five  cents. 
P.  971.] 

MISSISSIPPI. 

SEC.  13.  Be  it  further  enacted:  That  it  shall  be  lawful  for 
notaries  public  to  demand,  receive,  and  take  the  fees  hereinafter 


334  STATUTORY   TEES. 

mentioned  for  any  business  done  by  them,  that  is  to  say :  For  pro- 
testing bill  or  note  for  non-acceptance  or  non-payment  and  giving 
one  notice,  two  dollars ;  each  additional  notice,  twenty-five  cents  ; 
registering  such  protest  and  making  record,  one  dollar ;  attesting 
letters  of  attorney,  and  seal,  fifty  cents ;  notarial  affidavit  to  an  ac- 
count or  other  writing,  and  seal,  fifty  cents ;  each  oath  or  affirma- 
tion, and  seal,  fifty  cents ;  notarial  proouration  and  seal,  one  dollar ; 
taking  proof  of  debts  to  be  sent  abroad,  fifty  cents ;  taking  protest 
in  insurance  cases,  and  seal,  one  dollar ;  copy  of  record  and  affida- 
vit, one  dollar ;  taking  acknowledgment  to  deed  or  other  writing, 
and  seal,  twenty-five  cents.  (Laws  1872,  p.  149.) 

MISSOURI. 

SEC.  22.  Notaries  shall  be  allowed  fees  for  their  services,  as  fol- 
lows :  For  noting  a  bill  of  exchange  or  note  for  protest,  fifteen 
cents ;  for  entering  protest  of  same,  thirty-five  cents ;  for  register- 
ing a  protest,  thirty-five  cents ;  for  noting  without  protest,  thirty- 
five  cents ;  for  notice  to  such  indorser,  or  other  party,  fifteen 
cents ;  for  travel,  per  mile,  eight  cents ;  for  taking  acknowledg- 
ment of  deed,  or  other  instrument,  with  certificate  and  seal,  fifty 
cents ;  for  a  marine  protest,  or  fire  insurance  protest,  five  dollars ; 
for  drawing  a  contract  of  a  boatman,  if  required,  seventy-five 
cents ;  for  certificate,  attested  by  seal,  fifty  cents ;  for  taking  the 
acknowledgment  of  parties  to  contract,  attested  by  seal,  fifty  cents  ; 
for  making  an  entry  of  a  boatman  not  rendering  himself  on  board 
agreeably  to  contract,  fifteen  cents ;  for  affixing  seal  thereto,  ten 
cents ;  for  all  copies  of  records  and  papers,  for  every  hundred 
words,  fifteen  cents ;  for  all  other  services  concerning  boatmen  and 
their  contracts,  the  same  fees  as  are  allowed  justices  of  the  peace 
for  like  services.  And  for  all  other  services,  the  same  fees  as  are 
allowed,  by  law,  to  justices  of  the  peace  in  like  cases.  (Wagner's 
Stats.  1870,  Vol.  1,  p.  628.) 

MONTANA. 

SEC.  3.  That  the  fees  of  notaries  public  shall  be  as  follows : 
For  noting  a  bond,  bill  of  exchange,  or  promissory  note  for  protest, 
one  dollar ;  for  each  protest  and  record  of  same,  one  dollar ;  for 
each  notice  of  protest,  one  dollar ;  for  each  certificate  and  seal,  one 
dollar;  for  all  other  cases  the  same  as  are  allowed  to  justices  of 
the  peace  for  like  services.  (Laws  1873,  p.  60.) 

SEC.  1.  Justices  of  the  peace  shall  receive  the  following  fees  for 
the  following  services  :*##=*#  Drawing  certificates  and 
making  affidavits,  per  folio,  twenty  cents ;  *  *  *  *  certifying 
depositions,  transcript  of  docket  entries,  copies  of  pleadings,  or 
writings  on  file,  not  otherwise  provided,  per  folio,  twenty  cents  ; 
*  acknowledge  deeds  or  other  instruments,  each  per- 
son, fifty  cents ;  taking  deposition,  per  folio,  twenty  cents.  *  * 


STATUTORY   FEES.  335 


NEBRASKA. 

SEC.  19.  For  each  protest,  one  dollar  and  fifty  cents ;  for 
recording  the  same,  fifty  cents;  for  taking  affidavit  and  seal, 
twenty-five  cents ;  for  administering  oath  or  affirmation,  ten  cents ; 
for  taking  deposition,  each  ten  words,  two  cents ;  for  each  certifi- 
cate and  seal,  twenty-five  cents ;  for  taking  acknowledgment  of 
deed  or  other  instrument,  fifty  cents.  (Gen.  Stats.  1873,  p.  382.) 

NEVADA. 

2749.  The  fees  of  notaries  public  shall  be  as  follows :  For  draw- 
ing and  copying  every  protest  for  the  non-payment  of  a  promissory 
note,  or  for  the  non-payment  or  non-acceptance  of  a  bill  of  ex- 
change, draft,  or  check,  two  dollars ;  for  drawing  and  serving  every 
notice  of  non-payment  of  a  promissory  note,  of  the  non-payment  or 
non-acceptance  of  a  bill  of  exchange,  draft,  or  check,  one  dollar ; 
for  drawing  an  affidavit,  deposition,  or  other  paper,  for  which  pro- 
vision is  not  herein  made,  for  each  folio,  thirty  cents ;  for  taking 
an  acknowledgment,  or  proof  of  a  deed,  or  other  instrument,  to 
include  the  seal  and  the  writing  of  the  certificate,  for  the  first  signa- 
ture, one  dollar,  and  for  each  additional  signature,  fifty  cents ;  for 
administering  an  oath  or  affirmation,  twenty-five  cents ;  for  every 
certificate  to  include  writing  the  same,  and  the  seal,  fifty  cents ; 
no  other  fees  shall  be  charged  than  those  specially  set  forth  herein, 
nor  shall  fees  be  charged  for  any  other  services  than  those  men- 
tioned in  this  act.  (Compiled  Laws  1873,  Vol.  2,  pp.  78-79.) 

NEW  HAMPSHIRE. 

SEC.  25.  Notaries  public  shall  be  entitled  to  the  following  fees  : 
For  every  protest  under  seal,  fifty  cents ;  every  certificate  under 
seal,  twenty-five  cents ;  for  waiting  on  a  person  to  demand  pay- 
ment or  to  witness  any  matter  and  certifying  the  same  under  seal, 
fifty  cents ;  for  every  notice  of  non-payment  to  any  party  to  a  bill 
or  note,  twenty-five  cents ;  for  services  relating  to  the  taking  of 
depositions,  the  same  fees  as  justices  are  entitled  to  receive. 
(Genl.  Stats.  1867,  p.  550.) 

[Justices  for  swearing  each  witness  and  caption  of  deposition, 
thirty-four  cents ;  for  writing  deposition,  each  page,  seventeen 
cents ;  for  taking  and  certifying  the  acknowledgment  of  any  deed 
or  other  instrument  by  one  or  more  persons  at  one  time,  seventeen 
cents.  Id.  p.  547.] 

NEW  JERSEY. 

It  shall  and  may  be  lawful  for  every  notary  public  and  justice  of 
the  peace  to  demand  and  take  the  following  fees,  to  wit:  For 
every  attestation,  protestation,  and  other  instrument  of  publica- 
tion, under  his  seal  of  office,  relative  to  a  foreign  bill  of  exchange, 
one  dollar,  and  for  recording  the  same  in  a  book  kept  for  that  pur- 
pose, seventy-five  cents  ;  for  every  attestation,  protestation,  and 


336  STATUTOEY   FEES. 

other  instrument  of  publication,  under  seal  of  his  office,  relative  to 
inland  bills  of  exchange  or  promissory  notes,  if  said  notes  or  bills 
exceed  one  hundred  dollars,  the  sum  of  fifty  cents,  and  if  one 
hundred  dollars  or  less  than  one  hundred  dollars,  the  sum  of  thirty 
cents,  and  for  recording  the  same  in  a  book  kept  for  that  purpose, 
the  sum  of  twenty-five  cents.  (Nixon's  Digest,  1868,  p.  771.) 

SEC.  1.  It  shall  be  lawful  for  every  notary  public  and  justice  of 
the  peace  to  take,  for  his  whole  services  in  protesting  any  inland 
bill  of  exchange  or  promissory  note,  the  following  fees,  to  wit : 
For  any  such  bill  or  note  for  one  hundred  dollars  and  over,  the  sum 
of  one  dollar  and  fifty  cents,  and  for  every  such  bill  or  note  of  less 
than  one  hundred  dollarsrthe  sum  of  one  dollar  and  thirty  cents. 

SEC.  2.  If  any  notary  or  justice  shall  charge  any  greater  fees, 
for  the  services  mentioned  in  the  foregoing  section,  than  are  therein 
allowed,  he  shall  forfeit  and  pay  to  the  party  from  whom  lie  shall 
•have  so  unjustly  taken  the  same,  the  sum  of  twenty-five  dollars,  to 
be  recovered  in  an  action  of  debt,  with  costs  of  suit,  before  any 
Court  of  competent  jurisdiction.  (Ibid.  p.  772.) 

NEW  MEXICO. 

Acknowledgments  are  taken  by  commissioners  specially  ap- 
pointed. Commissioners  for  New  Mexico  are  allowed  to  charge 
the  same  fees  as  may  be  allowed  in  the  State  or  Territory  in  which 
he  exercises  office.  Fees  of  alcaldes :  For  taking  acknowledg- 
ments, twenty-five  cents ;  certifying  depositions,  twenty-five  cents ; 
writing  depositions,  ten  cents  per  hundred  words.  (Comp.  Laws, 
1865,  p.  300.) 

NEW  YORK. 

It  shall  not  be  lawful  for  any  notary  public,  directly  or  indirectly, 
to  demand  or  receive  for  the  protest  for  the  non-payment  of  any 
note,  or  for  the  non-acceptance  or  non-payment  of  any  bill  of  ex- 
change, check,  or  draft,  and  giving  the  requisite  notices  and  certifi- 
cates of  such  protest,  including  the  notarial  seal  if  affixed  thereto, 
any  greater  fee  or  reward  than  seventy-five  cents  for  such  protest, 
and  ten  cents  for  each  notice,  not  exceeding  five  on  any  bill  or  note. 
*  *  (6  Edmond's  Stats,  p.  476.) 

Administering  oath,  twelve  and  one-half  cents ;  for  taking  proof 
or  acknowledgment  of  a  deed,  and  drawing  and  signing  the  certifi- 
cate for  one  person,  twenty-five  cents ;  for  each  additional  person 
having  executed  the  same  deed,  twelve  and  one-half  cents.  (Laws 
1840,  p.  258,  Sec.  2.) 

NORTH  CAROLINA. 

The  fees  of  notaries  public,  for  each  certificate  and  seal,  shall  be 
fifty  cents,  and  in  other  matters  shall  be  as  regulated  by  the  chap- 
ter entitled  "salaries  and  fees."  (Battle's  Revision,  1873,  p.  631.) 

Notaries  public,  and  other  persons  acting  as  such,  shall  be  allowed 
one  dollar  for  all  services  on  a  protest  for  non-acceptance,  or  for 
non-payment,  or  for  both  when  done  at  the  same  time,  of  any 


STATUTORY   FEES.  337 

order,  note,  draft,  bond,  or  bill,  or  any  other  thing  necessary  to  be 
protested.  For  other  necessary  services,  where  no  fee  is  fixed, 
they  shall  be  allowed  twenty  cents  for  every  ninety  words :  pro- 
vided, however,  that  cases  of  protest  concerning  vessels  or  their  car- 
goes shall  not  be  affected  by  this  chapter.  (Ibid.  p.  810.) 

OHIO. 

SEC.  9.  For  the  presentment,  demand,  notice  to  drawers  and 
indorsers,  and  instruments  of  protest,  of  each  bill  of  exchange,  or 
promissory  note,  the  notary  public  shall  receive  the  sum  of  one 
dollar ;  and  for  recording  each  instrument  by  him  required  to  be 
recorded,  the  sum  of  ten  cents  for  each  one  hundred  words,  and  no 
more,  and  for  his  services  in  taking  and  certifying  acknowledg- 
ments of  deeds,  mortgages,  liens,  powers  of  attorney,  and  other  in- 
struments of  writing,  and  for  taking  and  certifying  depositions  and 
affidavits,  administering  oaths,  and  other  official  services,  he  shall 
receive  the  same  fees  as  are  or  may  be  allowed  by  law  to  justices 
of  the  peace  for  like  services ; '  and  in  taking  depositions,  he  shall 
have  the  same  power  to  compel  the  attendance  of  witnesses,  and 
to  punish  witnesses  for  refusing  to  testify,  which  are  or  may  be  by 
law  vested  in  justices  of  the  peace  ;  and  all  sheriffs  and  constables 
in  this  State  are  hereby  required  to  serve  and  return  all  process 
issued  by  such  notaries  in  the  taking  of  depositions.  (Swan  & 
Critchfield's  Stats.  1870,  Vol.  1,  p.  874;  Sayler,  Vol.  2,  p.  1082.) 

SEC.  11.  Any  notary  who  shall  charge  or  receive  any  fee  or  re- 
ward for  any  act  or  service  done,  or  rendered  by  him  under  this  act 
greater  than  the  amount  herein  limited,  or  who  shall  dishonestly 
or  unfaithfully  discharge  any  of  his  duties  as  notary  public,  shall, 
on  complaint  filed  and  substantiated  in  the  Court  of  Common 
Pleas  in  the  county  in  which  such  notary  public  resides,  be 
removed  from  his  said  office  by  such  Court,  and  the  Court  shall 
thereupon  certify  the  fact  of  his  removal  to  the  governor,  and  the 
party  so  removed  shall  be  thereafter  ineligible  to  a  re-appointment 
to  the  office  of  notary  public  in  this  State. 

SEC.  1.  Penalty  for  charging  or  receiving  excess  of  fees  01 
costs.  Be  it  enacted,  etc. :  That  if  any  officer  in  this  State, 
authorized  by  law  to  charge  or  receive  fees  or  costs  for  his  official 
duties,  shall  knowingly  charge,  ask,  demand,  or  receive  any  more  or 
greater  fees  or  costs  than  are  allowable  by  law  for  such  official 
duties,  such  officer,  so  offending,  shall  be  deemed  guilty  of  a  misde- 
meanor, and  upon  conviction  thereof  be  fined  in  any  sum  not  ex- 
ceeding one  hundred  dollars,  or  imprisoned  in  the  jail  of  the  county 
not  exceeding  ten  days,  or  both,  at  the  discretion  of  the  Court,  and 
shall  be  answerable  to  the  party  injured,  in  treble  damages,  in 
a  Court  of  competent  jurisdiction.  (Sayler's  Stats.  1876,  Vol.  4,  p. 
2876.) 

OREGON. 

SEC.  10.  The  fees  of  notaries  public  shall  be  as  follows :  For 
every  protest  of  a  bill  of  exchange,  or  promissory  note,  one  dollar ; 
attesting  any  written  instrument,  and  seal,  one  dollar ;  noting  a  bill 

NOTARIES — 22. 


338  STATUTORY    FEES. 

of  exchange  or  promissory  note  for  non-acceptance  or  non-pay- 
ment, one  dollar ;  registering  protest  of  bill  of  exchange,  one  dol- 
lar ;  certifying  and  taking  an  affidavit,  and  all  certificates  under 
seal,  one  dollar ;  taking  the  acknowledgment  of  any  deed  or  other 
instrument  in  writing,  one  dollar ;  making  and  taking  proof  of  any 
legal  instrument,  for  each  folio,  twenty-five  cents ;  for  taking  dep- 
ositions, each  folio,  twenty-five  cents ;  for  administering  an  oath, 
twenty-five  cents.  (Deady  &  Lane's  Gen.  Laws,  1872,  p.  604.) 

PENNSYLVANIA. 

The  fees  of  notaries  public,  in  the  county  of  Allegheny,  shall  be 
as  follows,  namely :  Making  demand  for  payment  or  acceptance 
of  a  promissory  note,  bill  of  exchange,  draft,  or  check,  fifty  cents ; 
protesting  the  same,  fifty  cents ;  registering  protest  of  the  same, 
fifty  cents ;  for  each  notice  of  protest,  exceeding  two,  ten  cents ; 
administering  oaths  or  affidavit,  writing  out,  and  verifying  the 
same  with  seal,  one  dollar ;  probate  to  bill  or  account,  and  certify- 
ing the  same  with  seal,  fifty  .  cents ;  acknowledgment  of  deed, 
mortgage,  power  of  attorney,  etc.,  one  name,  twenty-five  cents ; 
ditto,  each  additional  name,  twenty-five  cents,  taking  depositions, 
(first  page,  folio  cap)  one  dollar  ;  ditto,  each  additional  page,  sev- 
enty-five cents;  marine  protest,  including  affidavits,  certificate, 
seal,  etc.,  ten  dollars.  Special  acts  vary  the  fees  for  many  counties. 
(Purdon's  Digest  Brightly,  1870,  p.  1504.) 

RHODE  ISLAND. 

The  fees  of  notaries  public  shall  be  as  follows :  For  noting  a 
marine  protest,  one  dollar ;  for  drawing  and  extending  such  pro- 
test, and  recording  the  same,  one  dollar  and  fifty  cents  ;  for  taking 
affidavits,  twenty-five  cents ;  for  noting  any  bill  of  exchange,  order, 
or  check,  for  non-payment  or  non-acceptance,  twenty-five  cents ; 
for  trav.el  of  more  than  "one  mile,  per  mile,  ten  cents ;  for  extend- 
ing a  protest  for  the  non-acceptance  or  non-payment  of  a  note,  bill 
of  exchange,  order,  or  check,  and  recording  the  same,  seventy-five 
cents ;  for  taking  the  acknowledgment  of  any  instrument,  and  af- 
fixing his  seal,  fifty  cents.  (Gen.  Stats.  1872,  p.  598,  Sec.  28.) 

To  all  officers  empowered  to  take  depositions,  there  shall  be 
allowed :  For  every  hour  necessarily  employed,  forty  cents ;  for 
every  page  of  two  hundred  words,  thirty  cents ;  for  every  mile's 
travel,  to  place  of  caption,  ten  cents.  (Gen.  Stats.  1872,  p.  593, 
Sec.  5.) 

SOUTH  CAROLINA. 

For  taking  deposition,  and  swearing  witness,  per  copy  sheet, 
twenty-five  cents ;  for  every  protest,  two  dollars  and  twenty-five 
cents;  for  a  duplicate  of  deposition,  protest,  and  certificate, per  copy 
sheet,  fifteen  cents ;  for  each  attendance  on  any  person  to  prove 
any  matter  or  thing,  and  certifying  the  same,  one  dollar  ;  for  every 
notarial  certificate,  with  seal  affixed,  one  dollar ;  for  administering 
an  oath,  twenty-five  cents ;  for  administering  an  oath  on  affidavit, 


STATUTORY   FEES.  389 

fifty  cents ;  for  taking  renunciation  of  dower  or  inheritance,  two 
dollars.     (Rev.  Stats.  1873,  p.  704,  Sec.  9.)    " 

TENNESSEE. 

The  notaries  public  of  this  State  are  entitled  to  demand  and 
receive  the  following  fees  and  compensation  for  services :  For  re- 
cording in  a  well-bound  book,  to  be  kept  by  him  for  that  purpose, 
each  attestation,  protestation,  and  other  instrument  of  publication, 
one  dollar  ;  for  every  acknowledgment,  or  probate  of  deed  or  other 
instrument  of  writing,  one  dollar ;  for  each  deposition  taken,  one 
dollar ;  for  any  other  service  legally  performed  by  him,  the  same 
fees  allowed  other  officers  for  like  services.  (Thompson  &  Ste- 
ger's  Stats.  1872,  Sec.  4575.) 

TEXAS. 

For  protesting  a  bill  or  note  for  non-acceptance,  non-payment, 
registering,  and  seal,  two  dollars ;  for  protest  in  all  other  cases, 
twenty  cents  for  each  hundred  words,  and  fifty  cents  for  the  certifi- 
cate and  seal ;  for  taking  the  acknowledgment  or  proof  of  any 
deed,  or  any  other  instrument  of  writing,  for  registration  with  cer- 
tificate and  seal,  fifty  cents ;  for  administering  an  oath  or  affirma- 
tion, with  certificate  and  seal,  fifty  cents ;  for  taking  the  acknowl- 
edgment of  a  married  woman  to  a  deed,  or  any  other  instrument 
of  writing  authorized  to  be  executed  by  her,  with  certificate  and 
seal,  one  dollar  and  fifty  cents ;  for  all  certificates  not  otherwise 
provided  for  with  seal,  fifty  cents ;  for  all  notarial  acts  not  other- 
wise provided  for,  fifty  cents  ;  for  copies  of  all  records  or  memo- 
randums in  their  offices,  for  each  hundred  words,  with  certificate 
and  seal,  twenty  cents.  (Paschal's  Digest,  1870,  Art,  3822,  p.  637.) 

UTAH. 

The  fees  of  notaries  public  shall  be :  For  every  protest  with  seal, 
one  dollar ;  attesting  letters  of  attorney  and  seal,  fifty  cents ;  draw- 
ing and  taking  proof  of  acknowledgment  of  any  legal  instrument, 
not  exceeding  two  pages,  one  dollar ;  certifying  power  of  attorney, 
twenty-five  cents ;  affidavit  with  seal,  twenty-five  cents ;  register- 
ing protest  of  bill  of  exchange,  fifty  cents ;  for  non-acceptance  or 
non-payment,  fifty  cents ;  drawing  and  certifying  affidavit,  twenty- 
five  cents ;  each  oath  or  affirmation,  ten  cents ;  every  certificate, 
twenty-five  cents ;  being  present  at  demand,  tender,  or  deposit, 
fifty  cents.  Other  fees,  same  as  are  allowed  other  officers  in  similar 
cases.  [Fees  of  justices  of  the  peace  are :  For  taking  deposition,  per 
hundred  words,  fifteen  cents ;  certifying  deposition,  twenty  cents ; 
taking  and  certifying  any  acknowledgment,  twenty-five  cents.] 
(Rev.  Laws  1870,  p.  72.) 

VERMONT. 

Notaries  public  shall  receive  for  each  protest  under  seal  and  the 
notices,  one  dollar;  for  each  certificate  under  seal,  twenty-five 
cents.  (Gen.  Stats.  1862-70,  p.  737,  Section  47.) 


340  STATUTORY   FEES. 


VIRGINIA  AND  WEST  VIRGINIA. ' 

"When  there  is  a  protest  by  him,  for  the  record  thereof,  making 
out  instrument  of  protest  under  his  official  seal,  and  notice  of  dis- 
honor to  one  person  beside  the  maker  of  a  note  or  acceptor  of 
a  bill,  one  dollar;  for  every  additional  notice,  ten  cents;  for 
taking  and  certifying  the  acknowledgment  of  any  deed,  or  writing 
or  taking  and  certifying  the  privy  examination  and  acknowledg- 
ment of  a  married  woman,  fifty  cents;  for  administering  and 
certifying  an  oath,  unless  it  be  the  affidavit  of  a*  witness,  twenty- 
five  cents ;  for  taking  and  certifying  affidavits  or  deposition  of  wit- 
nesses, where  done  in  an  hour,  seventy-five  cents ;  if  not  done  in 
an  hour,  for  any  additional  time  at  the  rate  per  hour  of  seventy- 
five  cents ;  for  other  services,  the  same  fee  as  the  clerk  of  a  Circuit 
Court  for  like  services.  (Code  of  W.  Va.  1868,  p.  648,  Sec.  4; 
Code  of  Va.  1860,  p.  754-5,  Sec.  4.) 

WASHINGTON  TERRITORY. 

SEC.  10.  Every  notary  is  entitled  to  demand  and  receive  the 
fees  herein  enumerated  :  For  every  protest  of  a  bill  of  exchange  or 
promissory  note,  one  dollar ;  attesting  any  instrument  of  writing 
under  seal,  one  dollar;  noting  a  bill  of  exchange  or  promissory  note 
for  non-acceptance  or  non-payment,  one  dollar ;  taking  acknowledg- 
ment of  any  legal  instrument,  one  dollar ;  registering  protest  of 
bill  of  exchange  or  promissory  note,  seventy-fm-  cents ;  certifying 
an  affidavit  and  all  other  certificates  under  seal,  one  dollar ;  each 
oath  or  affirmation  without  seal,  twenty-five  cents ;  being  present 
at  demand,  tender,  or  deposit,  and  noting  the  same,  besides  mileage, 
fifty  cents ;  for  any  instrument  of  writing  drawn  by  a  notary  pub- 
lic, for  each  one  hundred  words,  twenty-five  cents.  (Laws  1873, 
p.  469.) 

-.  WISCONSIN. 

For  drawing  and  copy  of  protest  of  the  non-payment  of  a 
promissory  note  or  bill  of  exchange,  or  of  the  non-acceptance  of 
such  bill,  fifty  cents,  in  the  cases  where,  by  law,  such  protest  is 
necessary,  but  in  no  other  case ;  for  drawing  and  copy  of  every 
other  protest,  twenty-five  cents ;  for  drawing  copy,  and  serving 
every  notice  of  non-payment  of  a  note,  or  non-acceptance  of  a  bill, 
twenty-five  cents ;  for  drawing  any  affidavit,  or  other  paper  or  pro- 
ceeding for  which  provision  is  not  herein  made,  twenty  cents  for 
each  folio ;  and  for  copying  the  same,  six  ceiits  for  each  folio  ;  for 
taking  the  acknowledgment  of  deedsj  and  for  other  services  author- 
ized by  law,  the  same  fees  as  are  allowed  to  other  officers  for  simi- 
lar services.  (Taylor's  Stats.  1871,  p.  1526,  Sec.  32.) 

Fees  of  justices  are :  For  taking  deposition,  twelve  cents  per 
folio,  and  for  copy  of  proceedings,  or  of  any  paper  or  examination 
in  a  case  when  demanded,  per  folio,  ten  cents ;  for  taking  and  cer- 
tifying the  acknowledgment  of  a  deed,  for  each  grantor  named 
therein,  twenty-five  cents. 


STATUTORY    FEES.  341 


WYOMING. 

Notaries  public  shall  be  entitled  to  the  following  fees,  viz :  Pro- 
tecting note,  one  dollar;  each  notice  served,  fifty  cents;  taking 
acknowledgment,  seventy-five  cents;  for  each  mile  traveled  over 
the  first  mile,  he  shall  receive  twenty-five  cents.  For  all  other- 
duties  required  to  be  performed  by  them,  the  same  fees  as  are 
allowed  by  law  to  clerks  of  District  Courts  for  similar  services. 
(Comp.  Laws  1876,  p.  494,  Sec.  16.) 

FEES   OF  U.   S.   COMMISSIONERS. 

For  administering  an  oath,  ten  cents ;  for  taking  an  acknowledg- 
ment, twenty-five  cents ;  for  taking  and  certifying  depositions  to 
file,  twenty  cents  for  each  folio  ;  for  each  copy  of  the  same  furnished 
to  a  party  on  request,  ten  cents  for  each  folio.  (Sec.  847,  Rev.  Stat. 
TJ.  S.) 


Table  of  Cases. 


TABLE  OF  CASES, 


Abeles,  In  re,  12  Kan.  451,  p.  76. 
Abrams  v.  Ervin,  9  Iowa,  87,  p.  33. 
Adams  v.  Flanagan,  36  Vt.  400,  p.  70. 
v.  Graves,  18  Pick.  355,  p.  80. 
v.  King,  1G  111  169,  p.  86. 
v.  Wright,  15  Wis.  408,  pp.  128, 

132. 

Alexander  v.  Merry,  9  Mo.  514,  p.  30. 
Allan  v.  Mawson,  4  Campb.  115,  p.  88. 
Allen  v.  Merchants'  Bank,  22  Wend. 

215,  p.  134. 

v.  Perkins,  17  Pick.  369,  p.  80. 
v.  Shortridge,  1  Duvall,  34,  p.  45. 
v.  Suydam,  20  Wend.  321,  pp.  87, 

93,  124. 

American  Life  Insurance  Co.  v.  Emer- 
son, 4  Sm.  &  M.  177,  p.  134. 
Ammidown  v.  Woodman,  31  Me.  580, 

p.  106. 

Amory  v.  Fellowes,  5  Mass.  219,  p.  75. 
Anderson  v.  Bullock,  4  Munf.  442,  p. 

85. 
Armstrong  v.  Burrows,  6  Watts,  266, 

p.  72. 
Tlmrston,  11  Md.  148,  p. 

121. 

Arnold  v.  Dresser,  8  Allen,  435,  p.  101. 
v.  Kinloch,  50  Barb.  44,  p.  116. 
v.  Rock,  5  Duer,  207,  p.  145. 
Ashley  v.  Guuton,  15  Ark.  415,  p.  128. 
Austen  v.  Carey,  23  Ga.  4,  p.  74. 
Austin  v.  Wilson,  24  Vt.  630,  p.  151. 
Avery  v.  Stewart,  2  Conn.  69,  p.  106. 
Aymar  v.  Beers,  7  Cowen,  705,  pp.  87. 

92. 

Ayrey  v.  Fearnsides,  4  M.  &  W.  168, 
p.  86. 

B. 

Baber  v.  Bicklart,  52  Ind.  594,  p.  82. 
Bachellor  v.  Priest,  12  Pick.  399,  pp.  88, 

123. 
Bailey  v.  Bailey,  2  Camp.  517,  p.  92. 

v.  Dozier,  6  How.  23,  pp.  Ill,  114. 
Baker  v.  Morris,  25  Barb.  138,  p.  129. 
Baldwin  i>.  Snowden,  11  Ohio  St.  203, 
Ballard  v.  Perry,  28  Tex.  347,  pp.  36, 73. 

p.  46. 
Bank  of  Alexandria  v.  Swan,  9  Pet.  33, 

pp.  120, 131. 

Auburn  v.   Putnam,   1   Abb. 
App.  Dec.  80,  p.  125. 


Bank  of  Bennington  v.  Raymond,  12 

Vt.  401,  p.  88. 
Columbia  t;.  Lawrence,  1  Pet. 

578,  p.  127. 
Columbia  v.  Magruder,  6  H.  & 

J.  172,  p.  148. 
Commonwealth  v.  Mudgett,  44 

N.  Y.  514,  p.  149. 
Decatur  v.  Hodges,  9  Ala.  631, 

p.  114. 
Geneva  v.  Hewlett,  4  Wend. 

328,  p.  129. 
Kentucky  v.  Garey,  6  B.  Mon. 

626,  p.  151. 
Kentucky  v.  Goodale,  20  La. 

An.  50,  p.  143. 
Kentucky  r.  Pursley,  3  T.  B. 

Mon.  238,  p.  25. 
Louisiana  v.  Mansker,  15  La. 

115,  p.  126. 
Louisiana   v.  Satterfield,    14 

La.  An.  80,  pp.  151,  153. 
Manchester  v.  Slason,  13  Vt. 

334,  p.  25. 
Missouri  v.  Vaughan,  36  Mo. 

90.  p.  124. 
Mobile  v.  Brown,  42  Ala.  108, 

p.  112. 
Mobile  v.  King,  9  Ala.   279, 

p.  148. 

Bank  v.  Porter,  2  Watts,  141,  p.  113. 
Bank  of  Rochester  v.  Gould,  9  Wend. 

279,  p.  120. 
Rochester   v.   Gray,  2    Hill, 

227,  pp.  124, 139,  145. 
Scotland  v.  Hamilton,  1  Bell 

Com.  409,  p.  93. 
Syracuse  v.  Hollister,  17  N. 

Y.  46,  p.  103. 
TT.  S.  v.  Carmeal,  2  Pet.  543, 

p.  109. 
v.  Daniel,  12  Pet.  32,  p. 

111. 
V.  Goddard,    5    Mason, 

366,  p.  123. 
«.  Hatch,  6  Pet.  250,  p. 

128. 
v.  Leathers,  10  B.  Mon. 

64,  p.  111. 
Utica  v.  McKinster,  11  Wend. 

475,  p.  124. 
v.  Smith,  18  Johns.  230, 

pp.  88,  103,  124. 
Vergennes  v.  Cameron,  7  Barb. 
143,  p.  151. 


846 


TABLE    OF    CASES. 


Bank  of  Washington  v.  Triplett,  1  Pet. 

'25,  p.  88. 

Bank  v.  Woods,  11  Penn.  St.  99,  p.  73. 
Barber  v.  Ketcham,  4  Hill,  224,  p.  150. 
Barclay  v.  Bailey,  2  Campb.  527,  pp. 

102,  104. 

Barker  v.  Cassidy,  16  Barb.  177,  p.  145. 
v.  Fullerton,  11  La.  An.  25,  p. 

143. 

Barnes  v.  Caldwell,  3  Pittsb.  336,  p.  126. 
Barnwell  v.  Mitchell,  3  Coan.  101,  p. 

130. 

Barrett  v.  Allen,  10  Ohio,  426,  p.  106. 
v.  Evans,  28  Mo.  331,  p.  127. 
Barren  v.  Pettes,  18  Vt.  385,  p.  72. 
Barrow  v.  Richardson,  23  La.  An.  203, 

p.  153. 

Bartlett  v.  Fleming,  3  W.  Va.  1G3,  p.  45. 
Barton  v.  Morris,  15  Ohio,  408,  p.  39. 
Bassett  v.  Haines,  9  Cal.  261,  p.  94. 
Battin  v.  Bigelow,  1  Pet.  C.  0.  452,  p. 

43. 
Baumgardner  v.  Beeves,  35  Penn.  St. 

250,  p.  143. 

Bayly  v.  Chubb,  16  Gratt.  284,  p.  130. 
Beach  v.  Workman,  20  N.  H.  379,  p.  79. 
Beale  v.  Parrish,  20  K  Y.  407,  p.  123. 
Beals  v.  Peck,  12  Barb.  245,  p.  126. 
Beaman  v.  Whitney,  20  Me.  413,  p.  29. 
Beatty  v.  Ambs,  11  Minn.  331,  p.  83. 
Beckwith  v.  Smith,  22  Me.  125,  p.  150. 
Beckwith  v.  St.  Croix  Man.  Co.  23  Me. 

284,  p.  150. 

Behn  v.  Young,  21  Ga.  207,  p.  62. 
Belden  v.  De  Voe,  12  Wend.  225,  p.  64. 
Bell  v.  Chambers,  38  Ala.  660,  p.  79. 
v.  Evans,  10  Iowa,  353,  p.  39. 
v.  Hagerstown  Bank,  7  Gill.  216. 

pp.  127.  148. 

v.  Lent,  24  \Vend.  230,  p.  148. 
v.  State  Bank,  7  Blackf .  457,  p.  127. 
Bellasis  v.  Hester,  1  Ld.  Raym.  281, 

p.  96. 

Bemis  v.  Leonard,  118  Mass.  502,  p.  106. 
Bennett  v.  Paine,  7  Watts.  334,  p.  32. 
v.  Young,  18  Penn.  Str  261,  p. 

142. 
Berkshire  Bank  v.  Jones,  6  Mass.  524, 

p.  109. 

Bernard  v.  Elder,  50  Miss.  342,  p.  43. 
Blackburn  v.  Pennington,  8  B.  Mon. 

217,  pp.  39.  43. 

Blakely  v.  Grant,  6  Mass.  386,  p.  128. 
Blanchard  v.  Bennett,  1  Oreg.  328,  p. 

62. 
Boggs  v.  Bank  of  Mobile,  10  Ala.  970, 

p.  152. 

Bond  v.  Bragg,  17  111.  69,  p.  139. 
Bondurant  v.  Everett,  1  Met.  Ky.  658, 

p.  127. 

Booker  v.  Lowery,  2  Ala.  399,  p.  143. 
Booth  v.  Cook,  20  HI.  129,  pp.  36, 182. 
Boothroyd  v.  Engles,  23  Mich.  19,  p. 

28. 

Bowling  v.  Arthur,  34  Miss.  41,p.  134. 
v.  Harrison,  6  How.  U.  S.  248, 

pp.  126, 127. 

Bowman  v.  Wettig,  39  IlL  416,  p.  28. 
Bown  v.  Bean,  1  D.  Chip.  176,  p.  82. 
Bowne  v.  Moore,  38  Tex.  645,  p.  33. 


Boyd  t'.  City  Savings  Bank,  15  Gratt. 

501,  pp.  101,  118,  126. 
Boykin  v.  Rain,  28  Ala.  332,  p.  44. 
Bracken  v.  March,  4  Mo.  74,  p.  78. 
Bradley  v.  Davis,  26  Me.  45,  pp.  121, 140, 

154. 
Bradshaw  v.  Hedge,  10  Iowa,  402,  p. 

142. 
Brailsford  v.  Williams,  15  Md.  157,  p.' 

123. 
Branch  Bank  v.  McLeran,  2G  Iowa,  306, 

p.  101. 
Brandon  v.  Loftus,  4  How.  U.  S.  127,  p. 

151. 

Bray  v.  Hadwen,  5  M.  &  S.  68,  p.  134. 
Biencourt  v.  Parker,  27  Tex.  558,  p.  82. 
Brews ter  v.  Doane,  2  Hill,  537,  p.  154. 
Breyfogle  v.  Beckley,  16  S.  &  R.  264,  p. 

80. 

Brighton  v.  Walker,  35  Me.  132,  p.  72. 
Brinton  v.  Seevers,  12  Iowa,  389,  p.  30. 
Bristol  v.  Warner,  19  Conn.  7,  p.  86. 
Brittain  v.  Bank,  5  Watts  &  S.  87,  p. 

139. 
Broadnax  v.  Sullivan,  29  Ala.  320,  p. 

73. 

Brooks  v.  Chaplin,  3  Vt.  281,  p.  33. 
v.  Day,  11  Iowa,  40,  p.  150. 
v.  Snead,  50  Miss.  410,  p.  65. 
Brown  v.  Farran,  3  Ohio,  140,  pp.  39,  44. 
v.  Lunt,  37  Me.  423,  pp.  17,  33. 
v.  Manter,  22  N.  H.  408,  p.  29. 
v.  Philadelphia  Bank,  0  S.  &  R. 

484,  p.  137. 

v.  State,  43  Tex.  478,  p.  11. 
v.  Turner,  15  Ala.  8->2,  p.  101. 
Bryan  v.  Ramirez,  8  Cal.  461,  p.  29. 
Bryden  v.  Taylor,  2  Har.  &  J.  399,  p. 

139. 

Buford  v.  Gould,  35  Ala.  265,  p.  73. 
Burbankv.  Beach,  15  Barb.  320,  pp.  115, 

142,  151. 
Burgess  v.  Vreeland,  4  N.  J.  71,  pp.  122, 

133. 
Burke  v.  McKay,  2  How.  U.  S.  66,  p. 

113. 
Butler  v.  Murison,  18  La.  An.  363,  p. 

154. 

v.  Wright,  2  Wend.  369,  p.  154. 
Butterfield  &  Butt,  In  re,  14  B.  Reg.  195, 

p.  22. 
Buxton  u.  Jones,  1  M.  &  G.  86,  p.  102. 


C. 


Cabot  Bank  v.  Russell,  4  Gray,  167,  p. 

129. 
Cabot  Bank  v.  Warner,  10  Allen,  522, 

p.  126. 

Callaway  v.  Fash,  50  Mo.  420,  p.  31. 
Calumet,  etc.  Co.  v.  Russell,  68  HI.  426, 

pp.  42,  156. 

Cantwell  v.  State,  27  Ind.  505,  p.  65. 
Cape  Fear  Bank  v.  Steinmetz,  1  Hill, 

44,  p.  138. 

Carlyle  v.  Plumer,  11  Wis.  96,  p.  74. 
Carmichael  v.  Bank,  4  How.  Miss.  567, 

p.  90. 
Carpenters.  Dame,  10  Ind.  125,  p.  78. 


TABLE   OF    CASES. 


347 


Carter  v.  Bradley,  19  Me.  62,  p.  120. 

v.  Burley,  9  X.  H.  558,  pp.  134, 

139. 

v.  Ewing,  1  Tenn.  Ch.  212,  p.  82. 
v.  Union  Bank,  7  Humph.  548, 

pp.  99,  113. 
Caruthers  v.  Harbert,  5  Coldw.  3G2,  p. 

149. 

Case  v.  Burt,  15  Mich.  82,  pp.  9G,  104. 
Castles  v.  McMath,  1  Ala.  32G,  p.  142. 
Cauntu.  Thompson,  7  C.  B.  400,  p.  119. 
Cavasos  v.  Gonzales,  33  Tex.  133,  p.  75. 
Cayuga  Bank  v.  Bennett,  5  Hill,  230, 

p.  126. 
v.  Hunt,  2  Hill,  635,  pp. 

101,  114. 
Cayuga  Co.  Bank  v.  Warden,  1  Comst. 

413,  p.  120. 
Central  Bank  v.  Copelaud,  18  Md.  305, 

pp.  45,  155. 
v.  St.  John,  17  Wis.  157, 

p.  143. 

Chanoinew.  Fowler,  3  Wend.  173,  p.  123. 
Chapman  v.  Keene,  3  Ad.  &  El.  193,  p. 

123. 

Chase  v.  Street,  10  Iowa,  593,  p.  67. 
Chaters  v.  Bell,  4  Esp.  48,  p.  114. 
Chatham  Bank  v.  Allison,   15  Iowa, 

357,  p.  151. 

Cheek  v.  Koper,  5  Esp.  175,  p.  88. 
Chenowith  v.  Chamberlin,  6  B.  Mon. 

60,  p.  99. 

Chesmer  v.  Noyes,  4  Camp.  129,  p.  138. 
Chew  t7.  Reed,  19  Miss.  182,  p.  151. 
Chicopee  Bank  v.  Eager,  9  Met.  583,  p. 

127. 

v.  Philadelphia  Bank, 

8  Wall.  641,  p.  109. 

Chiniciuy  v.  Bishop  of  Chicago,  41  111. 

148,  p.  34. 

Chouteau  v.  Webster,  G  Met.  1,  p.  129. 
City,  etc.  Ins.  Co.  v.  Carrugi,  41  Ga. 

660,  p.  75. 

Clark  v.  Eldridge,  13  Met.  96,  p.  121. 
Clay  v.  Oakley,  17  Mart.  137,  p.  125. 
Clement  v.  Durgin,  5  Me.  9,  p.  80. 
Coddington  v.  Davis,  1  Comst.  186,  p. 

Coleman  v.  Carpenter,  9  Barr,  178,  p. 

lol. 

v.  Sayer,  1  Barn.  302,  p.  87. 
v.  Smith,  20  Penn.  St.  255,  pp. 
139,  146. 

Collins  17.  Boyd,  5  Dana,  316,  p.  36. 
v  Butler,  Stra.  1087,  p.  89. 

Colton  t7.  Seavey,  22  Cal.  496,  p.  35. 

Commercial  Bank  v.  Barksdale,  36  Mo. 
563,  p.  99. 

Com.  Bank  of  Manchester  v.  Agricul- 
tural Bank,  7  S.  &  M.  592,  p.  134. 

Commercial  Bank  v.  Varnum,  49  N.  Y. 
275,  pp.  99, 134. 

Conine  v.  Junction,  etc.  R.  R.  Co.  3 
Houston,  289,p.  85. 

Connelly  v.  McKean,  64  Penn.  St.  113, 
p.  96. 

Cook  v.  Bell,  18  Mich.  387,  p.  82. 

Cook  v.  Litchfield,  5  Saudf.  330,  p.  120. 

Cooks  v.  Staats,  18  Barb.  407,  p.  64. 

Coore  v.  Callaway,  1  Esp.  115,  p.  94. 


Coster   v.  Thomason,  19  Ala.  721,  p. 

139. 

Cowles  17.  Harts,  3  Conn.  517,  p.  122. 
Cromwell  v.  Hynson,  2  Esp.  511,  pp. 

114,  128. 

Crosse  v.  Smith,  1  M.  &  Sel.  545,  p.  125. 
Crowley  v.  Barry,  4  Gill,  194,  p.  116. 
Crumbaugh  v.  Kugler,  2  Ohio  St.  373, 

p.  35. 
Currier  v.  Lockwood,  40  Conn.  348,  p. 

86. 
Curry  v.  Bank  of  Mobile,  8  Port.  360, 

p.  148. 

Curtis  v.  Buckley,  14  Kan.  450,  p.  141. 
Cushman  v.  Wooster,  45  N.  H.  410,  p. 

74. 
Cuyler  v.  Stevens.  4  Wend.  566,  p.  118, 

133. 

D. 

Dakin  v.  Graves,  48  K  H.  45,  p.  142. 
Dana  v.  Sawyer,  22  Me.  244,  p.  104. 
Darbishire  v.  Parker,  6  East,  3,  p.  103. 
Davis  v.  Clarke,  6  Ad.  &  El.  1G,  p.  94. 

v.  Rich,  2  How.  Pr.  80,  p.  65. 
Davis'  Trusts,  In  re,  L.  R.  8  Eq.  98,  p. 

62. 

Dean  v.  Tygert,  1  A.  K.  Marsh.  172. 
Dehers  v.  Harriot,  1  Show.  163,  p.  87. 
De  La  Hunt  v.  Higgins,  9  Abb.  Pr.  422, 

p.  133. 

Delauney  v.  Burnett,  9  111.  454,  p.  37. 
Deminds  v.  Kirkman,  1  Sm.  &  M.  644, 

p.  133. 

Den  v.  Geiger,  4  Halst.  225,  p.  66. 
Den  v.  Hamilton,  12  K  J.  L.  109,  p.  29. 
Den  v.  Lloyd,  31  N.  J.  L.  395,  p.  81. 
Dennett  v.  Wyman,  13  Vt.  485,  p.  103. 
Dennis  v.  Tarpenny,  20  Barb.  371,  p. 

39,  p.  43. 

Dennison  v.  Benner,  41  Me.  332,  p.  73. 
Dennistoun  v.  Stewart,  17  How.  U.  S. 

606,  p.  114. 

Desegond  v.  Culver,  10  Ohio,  188,  p.  32. 
De  Wolf  v.  Murray,  2  Sandf .  166,  pp. 

115,  122. 

Dickens  v.  Beale,  10  Pet.  572,  p.  111. 
Dickerson  v.  Davis,  12  Iowa,  353,  p.  39. 
v.  Turner,  12  Ind.  223,  p.  143. 
Dodge  v.  Hollingshead,  6  Minn.  25,  p. 

155. 

Doe  v.  King,  4  Miss.  125,  p.  73. 
v.  Lewis,  29  Ga.  45,  p.  37. 
Dole  v.  Gold,  5  Barb.  490,  p.  121. 
Donegan  v.  Wood,  49  Ala.  242,  pp.  99, 

137. 

Donoho  v.  Petit,  1  Miss.  440,  p.  73. 
Dorchester   Bank    v.    New    England 

Bank,  1  Cush.  177,  pp.  125, 134. 
Dorsey  v.  Merritt,  7  Miss.  390,  p.  145. 
Doubieday  v.  Kress,  GO  Barb.  181,  p. 

98. 

Downer  v.  Remer,  21  Wend.  10,  p.  129. 
Draper  v.  Clemens,  4  Mo.  52,  pp.  100, 

108. 
Drumm  v.  Bradfute,  18  La.  An.  680,  p. 

142. 

Duckert  v.  Van  Lileinthal,  11  Wis.  56, 
pp.  117, 151. 


348 


TABLE   OF    CASES. 


Duinout  v.  McCracken,  6  Blackf.  356, 

p.  25. 
y.  Pope,  7  Blackf.  3T>7,  pp.  91, 

142. 

Dunbar  r.  Tyler,  44  Miss.  1,  p.  110. 
Duudas  v.  Hitchcock,  12  How.  256,  pp. 

3!>,  44. 
Dunlap  v.  Daugherty,  20  111.  397,  p.  35. 

v.  Waldo,  G  N.  H.  450,  p.  82. 
Dunn  v.  Adams,  1  Ala.  527,  p.  25. 
Dutchess  Co.  Bank  v.  Ibbotsron,  5  Den. 

110,  pp.  145,  146. 
Dye  v.  Bailey,  2  Cal.  383,  p.  71. 


E. 


Eagle  Bank  v.  Hathaway,  5  Met.  213, 

p.  127. 

Eason  v.  Isbell,  42,  Ala.  456,  p.  100. 
Eastman  v.  Turman,  24  Cal.  383,  p.  121. 
Eaton  v.  Woydt,  32  AVis.  277,  p.  32. 
Ede  v.  Johnson,  15  Cal.  53,  p.  65. 
Edes  v.  Bishop  of  Oxford,  Vaugh.  23, 

p.  5. 

Edgerton  v.  Jones,  10  Minn.  427,  p.  40. 
Edson  v.  Jacobs,  14  La.  An.  494,  p.  126. 
Elgin  i'.  Hill,  27  Cal.  372,  p.  72. 
Elliott  v.  Peirsol,  1  Pet.  328,  p.  40. 
Ellis  v.  Com.  Bank,  7  How.  Miss.  294,  p. 

99. 

English  v.  Wall,  12  Rob.  La.  132,  p.  88. 
Erskine  r.  Boyd,  35  Me.  511.  p.  72. 
Estep  v.  Cecil,  6  Ohio  St.  536,  p.  139. 
Evans  v.  Commonwealth,  4  S.  &R.  272, 

p.  40. 
Everard  v.  Watson,  1  El.  &  B.  801,  p. 

122 
Ewald  v.  Corbett,  32  Cal.  493,  p.  40. 


F. 


Fabens  v.  Mercantile  Bank,  23  Pick. 

330,  p.  125. 

Fabyan  v.  Adams,  15  N.  H.  371;  p.  72. 
Fall  River  Bank  v.  Willard,  5  Mete. 

216,  pp.  90,  103. 
Farmers'  Bank  v.  Allen,  18  Md.  475,  p. 

116. 
v.  Battle,  4  Humph.  86, 

p.  129. 
v.  Bowie,  4  Md.  290,  pp. 

116, 151. 

Farnum  v.  Buffum,  4  Gush.  264,  p.  36. 
Farnsworth  v.  Allen,  4  Gray,  453,  p. 

104. 
Farrell  Foundry  «.  Dart,  26  Conn.  376, 

p.  176. 

Farrelly  v.  Maria,  34  Ala.  284,  p.  73. 
Fassin  v.  Hubbard,  55  N.  Y.  465,  pp. 

99,  125. 

Field  v.  Nickeraon,  13  Mass.  131,  p.  102. 
v.  Tenney,  47  N.  H.  513,  p.  70. 
v.  Thornton,  1  Ga.  306,  p.  143. 
First  Nat.  Bank  v.  Owen,  23  Iowa,  185, 

p.  103. 

Fisher  v.  Beckwith,  19  Vt.  31,  p.  90. 
v.  Evans,  5  Binn.  542,  p.  128. 
v.  Leslie,  1  Esp.  425,  p.  85. 


Fisher  r.  Meister,  24  Mich.  447,  p.  42. 
Fisk  v.  Tank,  12  Wis.  276,  p.  76. 
Flanagan  v.  Young,  2  Har.  &  M.  38,  p. 

30. 

Fleming  v.  Fulton,  7  Miss.  473,  p.  145. 
v.  Richardson,  13  La.  An.  414, 

p.  25. 

Flint  v.  Rogers,  15  Me.  67,  p.  103. 
Foard  v.  Johnson,  2  Ala.  565,  p.  130. 
Fogarty  v.  Finlay,  10  Cal.  239,  pp.  30, 47. 

v.  Sawyer,  23  Cal.  570,  p.  36. 
Folger  v.  Chase,  18  Pick.  63,  p.  109.  . 
Ford  v.  Mitchell,  15  Wis.  304,  p.  112. 
Foster  v.  Foster,  20  N.  H.  208,  p.  74. 
Frank  v.  Longstreet,  44  Ga.  178,  p.  118. 
Freedman's  Bank  v.  Perkins,  7  Shep. 

292,  p.  124. 
Freeman  v.  Boynton,  7  Mass.  483,  pp. 

88,  108. 

Fry  r.  Hill,  7  Taunt.  397,  p.  91. 
Fryatt  v.  Lindo,  3  Edw.  Ch.  239,  p.  65. 
Fuller  v.  Dingman,  41  Iowa,  506,  p.  148. 
Fullerton  v.  Bank  of  U.  S.  1  Pet.  004, 

pp.  109,  132. 
Fund  Commissioners  v.  Glass,  17  Ohio, 

542,  p.  357. 

G. 

Gage  v.  Dubuque.  etc.  R.  Co.  11  Iowa, 

310,  p.  24. 

Gale  v.  Walsh,  5  T.  R.  239,  p.  99. 
Gammon  v.  Schmoll,  5  Taunt.  344,  p.  97. 
Garnett  v.  Stockton,  7  Humph.  84,  p. 

30. 
v.  Woodcock,  1  Starkie,  475,  p. 

103. 

Garrett  v.  Moss,  22  m.  363,  p.  39. 
Garthwaite  v.  Seip,  23  La.  An.  218, 

p.  133. 
Gates  v.  Beecher,  60  N.  Y.  518,  pp.  101, 

119. 
Gawtry  v.  Doane,  48  Barb.  148,  pp.  143. 

145. 

v.  Doane,  51  N.  Y.  85,  p.  99. 
Gazzam  v.  Armstrong,  3  Dana,  554,  p. 

97. 
Geralopulo  v.  Wieler,  10  C.  B.  690,  p. 

114. 

Gibbons  v.  Gentry,  20  Mo.  468,  p.  33. 
Gibbs  v.  Osborne,  2  Wend.  555,  p.  37. 

v.  Swift,  12  Cush.  393,  p.  29. 
Gilbert  v.  Dennis,  3  Met.  495,  pp.  108, 

118, 

Gilchrist  v.  Donnell,  53  Mo.  591,  p.  130. 
Gill  v.  Fauntleroy,  8  B.  Mon.  177,  p.  30. 

v.  Palmer,  29  Conn.  54,  p.  120. 
Gillespie  v.  Nevill,  14  Cal.  408,  p.  121. 
Gillett  v.  Stanley,  1  Hill,  121,  p.  37. 
Gindrat  v.  Mechanics'   Bank,  7  Ala. 

324,  p.  127. 

Gist  v.  Lybrand,  3  Ohio,  .T07,  p.  127. 
Glasgow  v.  Copeland,  8  Mo.  268,  p.  88. 
Goldsmith  v.  Blane,  1  Maule  &  S\  554, 

p.  128. 
Goode  v.  Colehan,  2  Stra.  1217,  p.  86. 

v.  Smith,  13  Cal.  81,  p.  39. 
Goodman  v.  Harvey,  4  Ad.  &  El.  870, 

pp.  114,  122. 
v.  Norton  17  Me.  381,  p.  132. 


TABLE   OF    CASES. 


349 


Gordon  v.  Price,  10  Ired.  385,  p.  143. 
Goupy  v.  Harden,  7  Taunt.  50,  p.  91. 
Gove  v.  Gather,  23  111.  634,  p  39. 
Gowan  v.  Jackson,  20  Johns.  176,  pp. 

91,  125. 

Gower  v.  Moore,  25  Me.  16,  p.  101. 
Graf  ton  v.  Moore,  14  N.  H.  142,  p  139. 
Graham  v.  Anderson,  42  111.  514,  pp. 

34  156 
Granite  'Bank  v.  Ayers,  16  Pick.  392, 

p.  107. 
Grant,  Succession  of,  14  La.  An.  795,  p. 

81. 
Gray  v.  Bell,  2  Rich.  67,  p.  103. 

v.  Ulrich,  8  Kan.  112,  p.  29. 
Green  v.  Glass,  29  Ga.  246,  p.  37. 
Green  v.  Louthain,  49  Ind.  139,  p.  118. 

v.  Jackson,  15  Me.  136,  p.  139. 
Grimes  v.  Martin,  10  Iowa,  347,  p.  70. 
Grinman  v.  Walker,  9  Iowa,  426,  p. 

128. 
Groesbeck  v.  Seeley,  13  Mich.  320,  p. 

33. 

Grosvenor  v.  Stone,  8  Pick.  79,  p.  125. 
Groton  v.  Dallheim,  6  Greenl.  476,  p. 

89. 

Grove  v.  Zumbro,  14  Gratt.  501,  p.  45. 
Grugeon  v.  Smith,  6  Ad.  &  El.  499,  p. 

121. 
Guppy  v.  Brown,  4  Dall.  410,  p.  83. 


H. 

Haggett  v.  Iniff,  31  Eng.  L.  &  Eq.  202, 

p.  63. 
Hairston  v.  Randolphs,  12  Leigh,  445, 

p.  42. 

Hall  v.  Davis,  44  111.  497,  p.  64. 
Hamilton  v.  Pitcher,  53  Mo.  334,  p.  33. 
Hankey  v.  Trotman,  1  W.  Bl.  1.  p.  102. 
Harden  v.  Boyce,  59  Barb.  427,  p.  110. 
Hardin  v.  Osborne,  60  111.  93,  p.  3o. 
Harding  v.  Merrick,  3  Ala.  60,  p.  78. 
Harger  v.  Bemis,  1  Thomp.  &  C.  460, 

p.  131. 
Harkins  v.  Forsyth,  11  Leigh,  294,  p. 

155. 
Harness  v.  Davies  Co.  Sav.  Ass.  46  Mo. 

357,  p.  117. 

Harrington  v.  Fish,  10  Mich.  415,  p.  28. 
Harris  v.  Clark,  10  Ohio,  5,  p.  88. 

v.  Robinson,  4  How.  U.  S.  336, 

p.  124. 

Harrison  v.  Nichols,  31  Yt.  709,  p.  71. 
v.  Ruscoe,  15  L.  J.  Exch.  110, 

p.  123. 

Hart  v.  "Wilson,  2  Wend.  513,  p.  140. 
Hartford  Bank  v.  Stedman,  3  Conn. 

489,  p.  127. 

Hartley's  Case,  1  C.  &  P.  556,  p.  105. 
Hartley  v.  Case,  4  Barn.  &  C.  339,  p. 

121. 

v.  Frosh,  6  Tex.  208,  p.  45. 
Harty  v.  Ladd,  3  Oreg.  353,  p.  40. 
Haskell  v.  Boardman,  8  Allen,  38,  pp. 

132,  133. 

Haskins  v .  Smith,  17  Vt.  263,  p.  69.. 
Hastings  v.  Barrington,  4  Whart.  48G, 

p.  147. 


Hastings  v,  Vaughn,  5  Cal.  315,  pp.  29, 

36 
Hatheld  v.  Perry,  4  Har.  (Del.)  463,  p. 

139. 

Hathaway  v.  Scott,  11  Paige,  173,  p.  65. 
Hawkes  v.  Salter,  4  Bing.  715,  p.  133. 
Hayden  v.  Westcott,  11  Conn.  129,  pp. 

29,30. 

Hays  v.  Hays,  5  Rich.  31,  p.  45. 
Hayward  Rubber  Co.  v.  Duncklee,  30 

Vt.  29,  p.  70. 

Heinrich  v.  Simpson,  66  111.  57,  p.  43. 
Henderson  v.  Cargill,  31  Miss.  367,  p. 

697 

v.  Grewell,  8  Cal.  581,  p.  39. 
Herkimer  Co.  Bank  v.  Cox,  21  Wend. 

119,  p.  113. 
Herrick  v.  Baldwin,  17  Minn.  209,  p. 

107. 

Higgins  v.  Wortel,  18  Cal.  330,  p.  71. 
Hildeburn  v.  Turner,  6  How.  69,  p.  117. 
Hill  v.  Bacon,  43  111.  477,  p.  34. 

v.  Norvell,  3  McLean,  583,  p.  130. 
v.  Samuel,  21  Miss.  307,  p.  29. 
Hilton  v.  Shepherd,  6  East,  16,  pp.  92, 

123. 
Himmelmann  v.  Hotaling,  40  Cal.  Ill, 

p.  102. 
Hinckley  v.  O'Farrel,  4  Blackf .  185,  p. 

25. 

Hoare  v.  Cazenove,  16  East,  391,  p.  97. 
Hobbs  v.  Shumates,  11  Gratt.  516,  p.  80. 
Holliday  v.  McDougall,  20  Wend.  81, 

p.  138. 
Hollingsworth  v.  McDonald,  2  Har.  & 

J.  230,  p.  39. 
Holtz  v.  Boppe,  37  N.  Y.  634,  pp.  88, 

101. 
Home  Ins.  Co.  v.  Green,  19  X.  Y.  518, 

p.  120. 
Homes  v.  Smith,  16  Me.  181,  pp.  126, 

154. 
Harker  v.  Anderson,  21  Wend.  372,  p. 

122. 

Hoover  v.  Rawlings,  1  Sneed,  287,  p.  80. 
Hope  v.  Sawyer.  14  111.  254,  p.  33. 
Housatonic  Bank  v.  Laflin,  5  Gush.  546, 

pp.  121,  150. 
House  v.  Adams,  48  Penn.  St.  261,  p. 

110. 

.   v.  Elliott,  6  Ohio  St.  497.  p.  73. 
Housego  v.  Cowne,  2  M.  &  W.  348,  p. 

118. 

Howard  v.  Ires,  1  Hill,  263,  p.  132. 
Howe  v.  Bradley,  19  Me.  31,  p.  128. 
Howell  v.  Ashmore,  2  Zabr.  261,  p.  40. 
Hubbard  v.  Matthews,  54  N.  Y.  50,  p. 

101,  125. 

Hughes  v.  Lane,  11  111.  123,  pp.  3D,  45. 
V.  Wilkinson,  37  Miss.  482,  p. 

35. 
Hultz  v.  Ackley,  63  Penn.  St.  142,  p. 

33 

Hunt  v.  Maybee,  7  N.  Y.  266,  p.  151. 
Hurst  v.  Larpin,  21  Iowa,  484,  p.  73. 
Hurt  i:  McCartney,  18  111.  129,  p.  182. 
Hutcheon  v.  Mannington,  6  Vesey,  823, 

p.  137. 
Hutchinson  v.  Rust,  2  Gratt.  394,  p. 

155. 


350 


TABLE   OF    CASES. 


Ingram  v.  Forster,  2  Smith,  243,  p.  96. 
Ireland  v.  Kip,  11  Johns.  231,  p.  127. 
Irvine  v.  Lowry,  14  Peters,  293,  p.  86. 


J. 


Jackson  v.  Gumaer,  2  Cow.  552,  p.  30. 
v.  Shepard,  2  Johns-.  77,  p.  28. 
Jacoway  v.  Gault,  20  Ark.  190,  p.  29. 
James  v.  Wade,  21  La.  An.  548,  p.  110. 
Jameson  v.  Swinton,  2  Camp.  373,  p. 

123. 
Jameson  v.  Swinton,  2  Taunt.  224,  p. 

132. 

Jansen  ».  McCahill,  22  Cal.  563,  p.  42. 
Jarboe  v.  Colvin,  4  Bush,  70,  p.  79. 
Jarvis  v.  Garnett,  39  Mo.  271,  p.  107. 
Jenks  v.  Doylestown  Bank,  4  Watts  & 

S.  505,  p.  141. 
Johnson  v.  Clarke,  22  Ga.  541,  p.  69. 

v.  Cocks,  12  Ark.  672,  pp.  81, 

163. 

v.  McGehee,  1  Ala.  186,  p.  33. 
v.  Prewitt,  32  Mo.  553,  p.  37. 
Johnston  v.  Haines,  2  Ohio,  55,  p.  32. 
Jones  v.  Bach,  48  Barb.  568,  p.  31. 

v.  Berryhill,  25  Iowa,  289,  p.  152. 
v.  Fales,  4  Mass.  245,  p.  109. 
v.  Lewis,  8  Watts.  &  S.  14,  p. 

157. 

Jordan  v.  Corey,  2  Ind.  385,  pp.  39,  41. 
Jourdanv.  Jourdan,  9  S.  &  R.26S,  p.  40. 
Juniata  Bank  v.  Hale,  16  Serg.  &  R. 
167,  pp.  101,  119. 


K. 

Kaufman  v.  Barringer,  20  La.  An.  419, 

p.  1)3. 

Kavanaugh  v.  Day,  10  R.  I.  393,  p.  41. 
Keefer  v.  Mason,  36  111.  406,  pp.  20,  (.'2. 
Keichline  v.  Keichline,  54  Penn-.  St.  75, 

p.  28. 

Keisker  v.  Ayres,  46  Cal.  82,  p.  76. 
Kellogg  v.  Vickory,  1  Wend.  408,  p.  37. 
Kelly  v.  Duulap,  3  Penn.  St.  136,  p.  28. 
Kemp  v.  Porter,  7  Ala.  138,  p.  33. 
Kenyon  v.  Virgil,  3  Johns.  540,  p.  65. 
Kern  v.  Von  Phul,  7  Minn.  426,  p.  143. 
Kerr  v.  Russell,  69  111.  666,  pp.  46,  155, 

156 

Ketcirum  v.  Barber,  4  Hill,  224,  p.  148. 
Kidder  v.  Blaisdell,  45  Me.  4(51,  p.  72. 
Kilgore  v.  Bulkley,  14  Conn.  362,  p.  121. 
King  v.  Crowell,  61  Me.  244,  pp.  103, 

108,  131. 
v.  Scriveners'  Co.  10  B.  &  C.  518, 

pp.  16,  20. 

v.  State,  15  Ind.  64,  p.  78. 
v.  Vance,  46  Ind.  246,  p.  48. 
Kirksey  v.  Bates,  7  Porter,  529,  p.  139. 
Kirtland  v.  Wanzer,  2  Duer,  278,  p.  145. 
Kisskadden  v.  Grant,  1  Kan.  328,  p.  79. 
Kleber  v.  Block,  17  Ind.  294,  p.  66. 
Kleinnman  v.  Boernstein,  32  Mo.  311. 
p.  128. 


Klockenbaum.  v.  Pierson,  16  Cal.  375, 

p.  121. 

Knapp  v.  Duclo,  1  Mich.  1ST.  P.  189,  p.  63. 
Knight  v.  Jones,  21  Mich.  161.  p.  86. 

v.  Nichols,  34  Me.  208,  pp.  69,  70. 
Kuhland  v.  Sedgwick,  17  Cal.  123,  p.  67. 
Kuhtman  v.  Brown,  4  Rich.  479,  p.  75. 


Ladow  v.  Groom.  1  Denio,  429,  p.  65. 
Laird  v.  Scott,  5  Heisk,  314,  p.  43. 
Lane  v.  Morse,  6  How.  Pr.  394,  p.  64. 
Lang  v.  Gale,  1  M.  &  S.  Ill,  p.  105. 
Lansing  v.  Coley,  13  Abb.  Pr.  272,  p. 

145. 
Lawrence  v.  Dougherty,  5  Yerg.  453,  p. 

86. 
Lawson  v.  Farmers'  Bank,  1  Ohio  St. 

20o,  pp.  132,  133. 
v.  Pickney,  40  ST.  Y.  Superior 

Ct.  187,  p.  147. 

Layman  v.  Brown,  1  Disney,  75,  p.  144. 
Learned  v.  Riley,  14  Allen,  lOi),  p.  35. 
Lee  v.  Buford,  4  Mete.  Ky.  7,  p.  151. 
Leftley  v.  Mills,  4  T.  R.  itO,  pp.  99,  105, 

Leftwich  v.  Keal,  7  W.  Va.  569,  p.  43. 
Lennig  v.  Tobey,  4  Penn.  L.  Jour.  275, 

p.  133. 

Lenox  v.  Leverett,  10  Mass.  1,  p.  114. 
Lewis  v.  Bakewell,  6  La.  An.  359,  p. 

126. 
v.  Goinpertz,  6  M  &  W.  400,  p. 

121. 
w.  Waters,  3  H.  &    McH.  430, 

p.  39. 
Lewiston  Falls  Bank  u.  Leonard,  43 

Me.  144,  p.  153. 

Lickmon  v.  Harding,  65  HI.  505,  p.  156. 
Liggett  v.  Weed,  7  Kan.  273,  pp.  88,  97. 
Little  v.  Slackford,  1  Mood.  &  M.  171, 

p.  85. 

Littlehalew.  Maberry,  43  Me.  264,  p.  116. 
Lindo  v.  Unsworth,  2  Camp.  602,  p.  133. 
Livingstou  v.  McDonald,  9  Ohio,  168, 

p.  32. 

Lloyd  v.  McGarr,  3  Barr,  474,  p.  137. 
Lockwood  v.  Crawford,  18  Conn.  361, 

pp.  108,  121. 

Logan  v.  Steele,  3  Bibb,  230,  p.  74. 
Looinis  v.  Pulver,  9  Johns.  244,  p.  102. 
Lord  v.  Appleton,  15  Me.  170,  p.  128. 
Louden  v.  Blythe,  16  Penn.  St.  532,  p. 

45. 
Louisiana   State   Bank  v.  Ellery,   16 

Mart.  87,  p.  125. 

Love  v.  Taylor,  26  Miss.  567,  p.  41. 
Lowery  v.  Scott,  24  Wend.  358,  p.  130. 
Lunt  v.  Adams,  17  Me.  230,  p.  104. 
Lyle  v.  Elwood,  15  Eq.  67,  p.  63. 
Lynch  v.  Livingston,  6  N.   Y.  422,  p. 

33. 

Lynes  v.  State,  32  Tex.  677,  p.  18. 
Lyon  v.  Barrows,  13  Iowa,  428,  p.  82. 

v.  Ely,  24  Conn.  507,  p.  75. 
Madison,  etc.  R.  R.  Co.  v.  Whitesel,  11 

Ind.  55,  p.  228. 
Magruder  v.  Bank,  3  Pet.  87,  p.  101. 


TABLE   OF    CASES. 


361 


Magruder  v-  Bank  of  Washington,  9 

Wheat.  598,  p.  90. 
Maiden  Bank  v.  Baldwin.  13  Gray.  154, 

p.  107. 

Mallinkrodt,  Ex  parte,  20  Mo.  493,  p.  76. 
Manchester  Bank  v.  Fellows,  8  Fost. 

313,  p.  127. 

Mann  v.  Birchard,  40  Yt.  32G,  p.  69. 
Marr  v.  Johnston,  9  Yerg.  1,  p.  130. 
Marrison  v.  White,  16  La.  An.  100,  p. 

81. 
Marston  v.  Bank  of  Mobile,  10  Ala.  284, 

p.  134. 

v.  Brashaw,  18  Mich.  81,  p.  33. 
Martin  v.  Chauntry,  2  Stra.  1271,  p.  86. 
v.  Coppock,  4  Neb.  173,  p.  80. 
v.  Ingersoll,  8  Pick.  1,  p.  133. 
r.  Winslow,  2  Mason,  241,  p.  102. 
Mason  v.  Brock,  12  111.  273,  p.  36. 
Masper  v.  Pedesclaux,  22  La.  An.  227, 

p.  126. 
Massachusetts  Bank?;.  Oliver,  lOCush. 

557.  p.  12G. 

Matthews  v.  Haydon,  2  Esp.  509,  p.  100. 
May  v.  Norton,  11  La.  An.  714,  p.  74. 
McAndrew  v.  Radwav,  34  N.  Y.  511,  p. 

153 
McBryde  v.  Wilkinson,  29  Ala.  662,  p. 

39. 
McCandless  v.  Engle,  51  Penn.  St.  309, 

p.  40. 
McCann  v.  Edwards,  6  B.  Mon.  "208,  p. 

40. 
McCleary  v.  Edwards,  27  Barb.  239,  p. 

82. 

McClintock  v.  Crick,  4  Iowa,  453,  p.  76. 
McConnick  v.  Trotter,  10  S.  &  R.  94,  p. 

86. 

McCrary  v.  Austell,  46  Ga.  450,  p.  160. 
McCraven  v.  McGuire,  23  Miss.  100,  p. 

33. 

McCrillis  v.  McCrillis,  38  Vt.  135,  p.  71. 
McCune  v.  Belt,  38  Mo.  291,  p.  120. 
McDaniels  v.  Flower  B.  Mfg.  Co.  22  Vt. 

274,  p.  202. 
McDermaid  v.  Russell,  41  HI.  490,  p. 

65. 
McEntire  v.  Henderson,  1  Penn.  St. 

402,  p.  74. 
McFarland  v .  Pico,  8  CaL  627,  pp.  121. 

143. 

Mclntire  v.  Ward,  5  Binn.  296,  p.  39. 
McKee,  Ex  parte,  18  Mo.  5<J9,  p.  76. 
McKellar  v.  Peck,  39  Tex.  381,  p.  27. 
McMurchey  v.  Robinson,  10  Ohio,  496, 

p.  105. 

McXatt  r.  Jones,  52  Ga.  473,  p.  127. 
Mechanics'  Bank  Assn.  v.  Place,  4 

Duer,  212,  p.  126. 
Meddock  v.  Williams,  12  Ohio,  377,  p. 

39. 

Mehlberg  v.  Fisher,  24  Wis.  607,  p.  117. 
Mellish  v.  Rawdon,  9  Bing.  416,  p.  91. 
Mercer  v.  Lancaster,  5  Pa.  St.  160,  p. 

129. 
Merchants'  Bank  v.  Easley,  44  Mo.  286, 

p.  117. 
V.  Elderkin,  25  N.  Y. 

178,  p.  109. 
Meriam?;.Harsen,2Barb.Ch.  232,  p.  40. 


Merz  v.  Kaiser,  20  La.  An.  377,  p.  128. 
Metcalfe  v.  Richardson,  11  C.  B.  1011, 

(73  E.  Com.  L.)  p.  119. 
Meyer  v.  Hibsher,  47  N.  Y.  265,  p.  107. 
Meyers  v.  Russell,  52  Mo.  26,  p.  80. 
Michener  v.  Cavender,   38   Penn.   St. 

334,  p.  45. 

Miller  v.  Henshaw,  4  Dana,  325,  p.  36. 
v.  Link,  2  Thomp.  &  C,86,  p.  31. 
Millius  v.  Shaffer,  3  Denio,  60,  p.  65. 
Mills  v.  Bank  of  U.  S.  11  Wheat.  431,  pp. 

109, 120. 
Mitchell  v.  Cross,  2  R.  I.  439,  p.  134. 

v.  De  Grand,  1  Mason,  176,  p. 

106. 
Moline,  Ex  parte,  19  Ves.  216,  pp.  126, 

lol. 

Monroe  v.  Arledge,  23  Tex.  478,  p.  29. 

Montgomery  v.  Hobson,  Meigs,  437,  p. 
156. 

Moody  v.  Threlkeld,  13  Ga.  55,  p.  86. 

Moore  v.  Missouri  Bank,  6  Mo.  379,  p. 
139. 

Moorman  v.  Bank  of  Alabama,  3  Por- 
ter, 353,  p.  120. 

Morris  v.  Husson,  4  Sandf .  93,  p.  129. 
v.  Sargent,  18  Iowa,  90,  p.  155. 

Morse  v.  Clayton,  21  Miss.  373. 

Morton  v.  Westcott,  8  Cush.  425,  p.  129. 

Mosher  v.  Heydrick,  45  Barb.  549,  p.  64. 

Moss  v.  Booth,  34  Mo.  316,  p.  71. 

Muilman  v.  D'Eguino,  2  H.  Bl.  565,  p. 
91. 

Mulholland  v.  Samuels,  8  Bush,  63,  p. 
131. 

Muller  v.  Boggs,  25  Cal.  175,  p.  33. 

Munford,  Ex  parte,  57  Mo.  603,  p.  76. 

Munroe  v.  Woodruff,  17  Md.  159,  p.  81. 

Musson  v.  Lake,  4  How.  262,  pp.  108, 
116, 139. 


N. 

Nagle  v.  Homer,  8  Cal.  358,  p.  97. 
Nailor  v.  Bowie,  3  Md.  251,  pp.  108,  143, 

154. 

Nantz  v.  Bailey,  3  Dana,  111,  p.  39. 
Nave  v.  Richardson,  36  Mo.  130,  pp.  116. 

139. 

v.  Ritter,  41  Ind.  301,  p.  65. 
Nebe,  Henry,  In  re,  11  Bank  R.  289,  p. 

22. 
Needles  v.  Needles,  7  Ohio  St.  432,  p. 

40. 
Nelson  v.  Fotterall,  7  Leigh,  180,  pp. 

89, 100,  143. 

Nevius  v.  Bank,  10  Mich.  547,  p.  128. 
New   Jersey  Ex.    Co.  v.  Nichols,    3 

Vroom,  166,  p.  73. 
Newman  v.  Samuels,  17  Iowa,  528,  p. 

30. 
Nicholls  v.  Webb,  8  Wheat.  331,  pp. 

139,  140,  144. 
Nichols  v.  Blackmore,  27  Tex.  586,  p.  91. 

v.  Stewart,  15  Tex.  226,  p.  36. 
Norman  v.  Wells,  17  Wend.  136,  p.  37. 
Norris  v.  Despavd,  28  Wd.  491,  p.  110. 
Nott  v.  Beatd,  16  La.  An.  308,  p.  116. 
Nunez  v.  Dautel,  19  Wall  500,  p.  86 


352 


TABLE   OF    CASES. 


O. 


O'Bannon  v,  Paremour,  24  Ga.  489,  p. 

160. 
Ocean  Nat.  Banki?.  Williams,  102  Mass. 

141,  p.  100. 
O'Connell  v.  Walker,  1  Porter,  263,  p. 

142. 

O'Ferrall  v.  Simplot,  4  Iowa,  381,  p.  29. 
O'Ferrall  v.  Simplot,  4  Greene,  Iowa, 

162,  p.  42. 
Ogden  v.  Gildewell,  6  Miss.  179,  p.  154. 

v.  Walters,  12  Kan.  282,  p.  31. 
Olcott  v.  Tioga  R.  R.  Co.  27  N.  Y.  546, 

p.  153. 
Omohundro  v.  Crump,  18  Gratt.  703,  p. 

86. 

O'Neil  v.  Dickson,  11  Ind.  253,  p.  149. 
Onondaga  Bank  v.  Bates,  3  Hill,  57,  p. 

99 
Oriental  Bank  v.  Blake,  22  Pick.  206, 

p.  126. 

Orr  v.  Maginnis,  7  East,  358,  p.  99. 
Otsego  Co.  Bank  v.  Warren,  18  Barb. 

290,  pp.  117,  139,  151. 
Overman  v.  Bank,  2  Vroom,  563,  p.  96. 
Owen  v.  Norris,  5  Blackf .  479,  p.  39. 
v.  Bobbins,  19  111.  545,  p.  42. 


P. 


Packard  v.  Lyon,  5  Duer,  82,  p.  107. 
Page  v.  Gilbert,  60  Me.  488,  p.  121. 
Palmer  v.  Whitney,  21  Ind.  68;  25  Ind. 

58,  pp.  124,  152. 
Parker  v.  Baker,  8  Paige,  428.  p.  64. 

v.  Gordon,  7  East,  385,  pp.  92, 

103, 132. 

v.  Hayes,  23  N.  J.  Eq.  186,  p.  78. 
v.  Phillips,  9  Cow.  94,  p.  37. 
Parkinson  v.  Finch,  45  Ind.  122,  p.  118. 
Pannell  v.  Phillips,  55  Ga.  618,  p.  94. 
Parsons  v.  Huff,  38  Me.  137,  p.  72. 
Pattee  v.  McCrillis,  53  Me.  410.  p.  139. 
Patterson  v.  Ely,  19  Cal.  28,  p.  207. 
Pease  v.  Barbiers,  10  Cal.  436,  p.  42. 
Pendell  v.  Coon,  20 1ST.  Y.  134,  p.  82. 
Pendleton  v.  Button,  3  Conn.  406,  p.  30. 
People's  Bank  v.  Brooke,  31  Md.  7,  p. 

116. 
v.   Keech,  26  Md.   521, 

p.  125. 
People  v.  Spalding,  2    Paige,  326,  p. 

67. 
Perkins  v.  Collins,  3  N.  J.  Eq.  482,  p. 

64. 

Peters  v.  Hobbs,  25  Ark.  67,  p.  129. 
Peyton  v.  Veitch,  2  Cranch  C.  C.  123,  p. 

69. 

Phillips,  In  re,  14  N.  B.  R.  219,  p.  24. 
Phillips  v.  Gould,  8  C.  &  P.  355,  p.  121. 
Philpot  v.  Briant,  1  Moore  &  P.  754,  p. 

101. 
Phoanix  Bank  v.  Hussey,  12  Pick.  483, 

p.  111. 
Pickney  v.  Burrage,  19  K  J.  Eq.  13,  p. 

28. 

Pierce  v.  Strathers,  27  Penn.  St.  249,  p. 
130. 


Pierson  v.  Boyd,  2  Duer,  33,  p.  145. 
Piner  v.  Clary,  17  B.  Mon.  645,  p.  112. 
Planters'  Bank  v.  Bradford,  4  Humph, 

39,  p.  130. 

Plimpton  v.  Somerset,  42  Vt.  35,  p.  69. 
Poole  v,  Decas,  1  Bing.  K.  C.  649,  p.  140. 
Porter  v.  Judson,  1  Gray,  175,  pp.  137, 

140. 
Pralus  v.  Pacific,  etc.  Co.  35  Cal.  30,  p. 

74. 

Prather  v.  Pritchard,  26  Ind.  65,  p.  71. 
Prescott  Bank  v.  Caverly,  7  Gray,  217, 

p.  91. 
Putnam  v.  Larimore,  Wright,  746,  p. 

72. 


Q. 

Quinley  v.  Atkins,  &Gray,  370,  p.  73. 


R. 

Rainer  v.  Haynes,  1  Hemp.  689,  p.  72. 
Rand  v.  Dodge,  17  N.  H.  343,  .p.  69. 
Randall  v.  Baker,  20N.H.  335,  p.  66. 

v.  Smith,  34  Barb.  452,  p.  142. 
Ransom  v.  Mack,  2  Hill,  587,  p.  154. 
Ray  v.  Porter,  42  Ala.  327,  p.  127. 
Raymond  v.  Middleton,  29  Penn.   St. 

530,  p.  86. 
v.  Williams,  21  Ind.  241,  p. 

78. 
Reed  v.  Bank  of  Ky.  IT.  B.  Mon.  91,  p. 

113. 
Rindskoff  v.  Malone,  9  Iowa,  540,  p. 

152. 
Renshaw'  v.  Triplett,  23   Mo.  213,  p. 

123. 
Requa  v.  Collins,  51  If.  Y.  144,  pp.  126, 

131. 
Reynolds  v.  Appleman,  41.  Md.  615-,  pp. 

122,  154. 
v.  Chettle,  2  Camp.  596,  p. 

109. 

Rexf  ord  v.  Rexf  ord,  7  Lans.  6,  p.  39. 
Rhett  v.  Poe,  2  How.  U.  S.  457,  p.  125. 
Rice  v.  Peacock,  37  Tex.  392,  p.  43. 
Ridgeway  v.  Underwood,  67  111.  419,  p. 

43. 
Rives  v.  Parmley,  18  Ala.  256,  pp.  139, 

143. 

Robins  v.  Gibson,  1  M.  &  S.  288,  p.  114. 
Roberts  v.  Fleming,  31  Ala.  683,  p.  71. 
Robinson  v.  Ames,  20  Johns.  14G,  p.  87. 
Rogers  v.  Stevens,  2  T.  R.  713,  pp.  99, 

122. 

Rogerson  v.  Hare,  1  Jur.  71,  p.  124. 
Rosenthal  v.  Griffin,  23  Iowa,  263,  p.  30. 
Ross  v.  Bedell,  5  Duer,  462,  p.  139. 
Rousch  v.  Duff,  35  Mo.  312,  p.  95. 
Routh  v.  Robertson,  11  Sm.  &  M.  382, 

p.  154. 
Rowan  v.  Odenheimer,  5  Sm.  &  M.  44, 

p.  120. 
Rowe  v.  Tupper,  13  C.  B.  249,  (76  En". 

C.  R.)  p.  134. 

v.  Young,  2  Bligh.  391,  p.  89. 
Russ  v.  Wingate,  30  Miss.  440.  p.  43. 


TABLE    OF    CASES. 


353 


s. 


Sackett  v.  Spencer,  29  Barb.  180,  p.  86. 
Salmons  v.  Hoyt,  53  Ga.  493,  p.  118. 
Salt  Springs  Nat.  Bank  of  Syracuse  v. 

Burton,  58  N.  Y.  430,  p.  104. 
Sargent  v.  Collins,  3  Nev.  260,  p.  80. 

v.  Townsend,  2  Disney,  472,  p. 

66. 

Satler  v.  Burt,  20  Wend.  205,  p.  10(5. 
Sather  v.  Rogers,  12  Iowa,  231,  p.  143. 
Saunderson  v.  Judge,  2  H.  Bl.  509,  p. 

109. 
Savage  v.  Balch,  8  Me.  27.  p.  80. 

v.  Birckhead,  20  Pick.  167,  p.  83. 
Scammon  v.  Scammou,  33  N.  H.  53,  p. 

75. 
Scharfenburg  v.  Bishop,  35  Iowa,  GO,  p. 

31. 
Sclioneraan  v.  Fegley,  7  Peun.  St.  433, 

pp.  139,  146. 
Schrader  v.  Decker,  9  Penn.  St.  14,  p. 

4C. 

Scott  v.  Gallagher,  11  S.  &  R.  347,  p.  32. 
Scudder  v.   Union  Nat.  Bank.  1  Otto. 

406,  p.  95. 
Seneca  Co.  Bank  v.  Neass,  3  X.  Y.  442, 

pp.  145,  151. 

Shaller  v.  Brand,  6  Binn.  438,  p.  42. 
Shanklin  v.  Cooper,  8  Blackf.  41,  p.  146. 
Shattuck  v.  People,  4  Scain.  478,  p.  63. 
Shaw  v.  Reed,  12  Pick.  132,  p.  108. 
Shedd  v.  Brett,  1  Pick.  401,  pp.  101,  119, 

121. 

Shelburne  Falls  Nat.  Bank  v.  Towns- 
ley,  102  Mass.  177,  p.  12;>. 
Sheldon  «.  Beiiham,  4  Hill,  129,  p.  100. 
v.  Stryker,  42  Barb.  284,  p.  30. 
v.  Wood,  2  Bosw.  267,  p.  72. 
Shelton  v.  Berry,  19  Tex.  154,  pp.  63, 

65. 

Shephard  v.  Carriel,  19  111.  313,  p.  29. 
Sherer  v.  Easton  Bank,  33  Penn.  St. 

134,  p.  143. 
Shipman  v.  Green,  1  C.  E.  Green  (N. 

JT)  251,  p.  118. 
Schorr  v.  Woodlief,  23  La.  An.  473,  p. 

137. 

Short  v.  Conlee,  28  111.  219.  pp.  28,  30. 
Shropshire  v.  Stevenson,  17  Ga.  622,  p. 

74. 
Sibley  v.  Johnson,  1  Mich.  380,  pp.  40, 

41. 

Sice  v.  Cunningham,  1  Cow.  397,  p.  102. 
Silliman  v.  Cummins,  13  Ohio,  116,  p. 

42. 

Simpson  v.  Carleton,  1  Allen,  109,  p.  72. 

v.  White,  40  N.  H.  540,  p.  143. 

Sims  v.  Handley,  1   How.  Miss.  1,  p. 

143. 
Skinner  v.  Fletcher,  1  Ired.  313,  p.  41. 

v.  Fulton,  39  111.  484,  p.  36. 
Slaughter  v.  Rivenbark,  35  Tex.  68,  p. 

69. 

Smart  v.  Howe,  3  Mich.  590,  p.  G6. 
Smedes  v.  Utica  Bank,  20  Johns.  384, 

p.  124. 

Smith  v.  Curlee,  59  111.  221.  p.  111. 
v.  Elliott,  39  Tex.  201,  p.  43. 
«.  Garden,  28  Wis.  685,  p.  31. 

NOTARIES — 23. 


Smith  v.  Little,  10  N.  H.  526,  p.  121. 

v.  McMannis,  7  Yerg.  483,  p.  143. 
v.  Roach,  7  B.  Mon.  17,  pp.  88. 134. 
v.  Van  Gilder,  26  Ark.  527,  p.  32. 
v.  Whiting,  12  Mass.  0,  p.  11:0. 
v.  Williams,  28  Miss.  48,  p.  43. 
Snow  v.  Perkins,  2  Mich.  238,  p.  120. 
Snyder  v.  Snyder,  50  Ind.  492,  p.  73. 
Spann  v.  Baltzell,  1  Fla.  301,  p.  143. 
Spear  v.  Pratt,  2  Hill,  582,  p.  93. 
Sprague  v.  Tyson,  44  Ala.  340,  p.  130. 
Stafford  v.  Yates,  18  Johns.  327,  p.  123. 
Stainback  v.  Bank,  11  Gratt.  260,  pp.  89, 

100. 

Stanton  v.  Blossom,  14  Mass.  116,  p.  123. 
f.  But.' on,  7  Conn.  527,  p.  281. 
Starke  v.  Etheridge,  71  N.  C.  243,  p.  37. 
Starr  v.  Sanford,  45  Penn.  St.  1-J3,  p.  146. 
Startup  v.  McDonald,  6  M.  &  G.  602,  p. 

105. 
State  Bank  v.  Hinchcliffe,  4  Ark.  444, 

p.  65. 
v.  Hurd,   12  Mass.   171,   p. 

107. 
v.  Napier,  ffHump.  270,  p. 

109. 

State  v.  Green,  15  N.  J.  L.  83,  p.  65. 
v.  Kimball,  50  Me.  40i),  p.  80. 
i'.  Lee,  21  Ohio  St.  662,  p.  2U. 
Steele  v.  Dart,  6  Ala.  798,  p.  73. 
Stephenson  v.  Dickson,  24  Penn.  St. 

148,  p.  133. 

Stetson  v.  Lyons,  34  Ala.  140,  p.  71. 
Stevens  v.  Blunt,  7  Mass.  240,  p.  86. 
v.  Doe,  6  Blackf.  475,  p.  42. 
v.  Hampton,  4(5  'Mo.  404,  p.  33. 
Stewart  v.  Eden,  2  Caines,  121,  pp.  100, 

128. 

Stiles  v.  Allen,  5  Allen,  320,  p.  73. 
Stimpson  v.  Brooks,  3  Blatch.  C.  C.  456, 

p.  63. 

Stocken  v.  Collin,  9  C.  &  P.  653,  p.  121. 
Stone  v.  Montgomery,  35  Miss.  83,  p. 

155. 

v.  Stillwell,  23  Ark.  444,  p.  72. 
Stonebreaker  v.  Short,  8  Penn.  St.  155, 

p.  72. 

Stout  v.  Slattery,  12  111.  162,  p.  67. 
Straker  v.  Graham,  4  M.  &  W.  721,  p. 

102. 
Strange  v.  Price,  10  Ad.  &  El.  125,  p. 

121. 
Strong  v.  King,  35  111.  9,  p.  104. 

v.  Smith,  3  McLean,  362,  p.  29. 
Stuart  v.  Dutton,  39  111.  91,  p.  39. 
Sullivan  v.  Deadman,  19  Ark.  484,  p. 

139. 
Sumner  v.  Bowen,  2  Wis.  524,  p.  146. 


T. 


Talbot  v.  Simpson,  1  Pet.  C.  C.  188,  p. 

42. 

Taylor  v.  Hatch,  12  Johns.  340,  p.  66. 
Thayer  v.  Torrey,  37  N.  J.  L.  338,  p.  40. 
Thomas  v.  Meier,  18  Mo.  573,  p.  42. 

v.  Shoemaker,  6  Watts  &  S. 

179,  p.  105. 
«.  Wheeler,  47  Mo.   363,  p.  71. 


354 


TABLE   OF    CASES. 


Thompson  v.  Burhans,  61  N.  Y.  52,  p. 

64. 

v.  Haile,  12  Tex.  139,  p.  79. 
v.  Ketcham,  4  Johns.  285,  p. 

107. 
v.  Morgan,  6  Minn.  292,  p. 

37. 

r.  Sloan,  23  Wend.  71,  p.  86. 
'•.Williams,  14  Cal.  160,  pp. 

118,  119. 
Thurman  v.  Cameron,  24  Wend.  87,  p. 

30. 
Ticonic  Bank  v.  Stackpole,  41  Me.  302, 

pp.  112,  149. 
Toulmin  v.  Heidelberg,  32  Miss.  268,  p. 

43. 
Townsend  v.  Lorain  Bank,  2  Ohio  St. 

345,  pp.  Ill,  122,  154. 
Townsley  v.  Sumrall,  2  Pet.  178,  pp. 

137,  138. 
Trask  v.  Martin,  1  E.  D.  Smith,  505,  p. 

87. 

Tredick  v.  Wendell,  1  N.  H.  80,  p.  108. 
Triggs  v.  Newnham,  1  Car.  &  P.  631, 

p.  104. 

Tubbs  v.  Gatewood,  26  Ark.  128,  p.  44. 
Tully  v.  Davis,  30  111.  103,  p.  30. 
Tunis  v.  Withrow,  10  Iowa,  305,  p.  67. 
Tunnor.  Lague,  2  Johns.  Cas.  1,  p.  110. 
Turner  v.  Rogers,  8  Ind.  139,  pp.  113, 

146,  148. 
Turpin  v.  Eagle  Creek  Co.  48  Ind.  45, 

p.  65. 
Tyler  v.  Bank  of  Kentucky,  7  T.  B. 

Mon.  557,  p.  25. 
Tyson  v.  Oliver,  43  Ala.  455,  p.  130. 


U. 

Union  Bank  v.  Foulkes,  2  Sneed,  555, 

p.  153. 
v.  Humphreys,  48  Me.  172, 


pp.  139, 149. 
v.  Hyde,  6 


,  6  Wheat.  572,  p. 
111. 
D.  Middlebrook,  33  Conn. 

95,  p.  146. 
v.  Willis,  8  Met.  504,  p. 

101. 
U.  S.  v.  Bank  of  Metropolis,  15  Pet. 

377,  p.  97. 
v.  Barker,  1  Paine  C.  C.  156,  p. 

92. 
v.  Barker,  4  Wash.  C.  C.  464,  pp. 

88,138. 

v.  Barker,  12  Wheat.  559,  p.  132. 
v.  Carneal,  2  Pet.  543,  p.  122. 


V. 

Vance  v.  Schuyler,  6  HI.  160,  pp.  29, 32, 

33. 
Van  Ormanv.  McGregor,  23  Iowa,  300, 

p.  155. 
Van  Vechtenw.  Pruyn,  13  K  Y.  549,  pp. 

128,  129. 

Vincent  v.  People,  5  Park.  Cr.  88,  p.  64. 
Vreeland  v.  Hyde,  2  Hall,  463,  p.  102. 


W. 

Wagner  v.  Kenner,  2  Rob.  La.  120,  p. 

105. 
Walker  v.  Bank,  9  N.  Y.  582,  p.  94. 

v.  Bank  of  Augusta.  3  Ga.  486. 

p.  148. 

v.  Barren,  4  Minn.  253,  p.  75. 
v.  State  Bank,  8  Miss.  704,  p. 

121. 
v.  Stetson,  19  Ohio  St.  400,  p. 

88. 
Wallace  v.  Agry,  4  Mason,  336,  pp.  91, 

122. 
Walmsley  v.  Acton,  44  Barb.  312,  p. 

115. 
o.  Rivers,  34  Iowa,  463,  p. 

148. 

Wain  v.  Freedland,  2  Miles,  161,  p.  83. 
Walsh  v.  Dart,  23  Wis.  334,  p.  91. 
Wanger  v.  Tupper,  8  How.  U.  S.  234. 

p.  111. 
Ward  v.  Mclntosh,  12  Ohio  St.  231,  p. 

39. 
v.  Northern  Bank,  14  B.  Mon. 

283,  p.  109. 

Warner  v.  Hardy,  6  Md.  525,  p.  30. 
Warren  Bank  v.  Parker,  8  Gray,  221, 

p.  134. 

Warren  v.  Gilman,  5  Shep.  360,  p.  122. 
v.  Scott,  32  Iowa,  22,  p.  b6. 
v.  Wairen,  10  Me.  259,  p.  139. 
Warnick  v.  Crane,  4  Den.  4GO,  p.  151. 
Waskern  v.  Diamond,  1  Hemp.  701,  p, 

69. 

Watts  v.  Womack,  44  Ala.  605,  p.  65. 
Way  v.  Butterworth,  108  Mass.  509,  p. 

107. 
Webbu.  Fairmauer,  3  M.  &  W.  473,  p. 

87. 

v.  Mears,  45  Pa.  St.  222,  p.  88. 
Wegerslofe  v.  Keene,  1  Stra.  214,  p.  97. 
Welborn  v.  Swain,  22  Ind.  194,  p.  73. 
Welsh  v.  Barrett,  15  Mass.  380,  p.  154. 
Wells  v.  Jackson,  etc.  Co.  47  N.H.  235, 

p.  82. 
v.  Whitehead,  15  Wend.  527,  p. 

114. 
West  Point  Iron  Co.  v.  Reymert,  45  N. 

Y.  703,  p.  30. 
West  River  Bank  ?;.  Taylor,  7  Bosw. 

466,  p.  132. 
Wheaton  v.  Wilmarth,  13  Met.  422,  p. 

121. 

White  v.  Englehard,  10  Miss.  38,  p.  146. 
Whitney  v.  Sears,  16  Vt.  587,  p.  69. 
Whitwell  u.Johnson,  17  Mass.  449,  pp. 

109,  132. 
Wickersham  v.  Reeves,  1  Iowa,  413,  p. 

30. 
Wilkinsv.  Jadis,  2  Barn.  &  Ad.  188,  p. 

104. 

Willard  v.  Cramer,  36  Iowa,  22,  p.  35. 
v.  Judd,  15  Johns.  531,  p.  67. 
Williams  v.  Bank  of  U.  S.  2  Pet.  97,  pp. 

118,  128. 
v.  Chadbourne,  6  Cal.  559,  p. 

71. 

v.  Putnam,  14  2sr.  H.  540,  p. 
112. 


TABLE   OP   CASES. 


355 


Williams  v.  Robson,  6  Ohio  St.  510,  p. 

156. 
v.  Turner,  2  Bay  S.  0.  411, 

p.  139. 

Willink  v.  Miles,  Pet.  C.  C.  429,  p.  32. 
Willis  ?;.  Green,  5  Hill,  232,  p.  101. 
Wilson  v.  Smith,  5  Yerg.  379,  p.  74. 

v.  Traer,  20  Iowa,  231,  p.  33. 
Winchester  v.  Winchester,  4  Humph. 

51,  p.  152. 
Wineham  Bank  v.  Norton,  22  Conn. 

213,  p.  110. 

Wixom  v.  Stephens,  17  Mich.  518,  p.  79. 
Wolf  v.  Burgess,  59  Mo.  583,  p.  130. 
Wood  v.  Corl,  4  Met.  203,  p.  131. 

v.  Harrow,  11  Johns.  434,  p.  37. 
v.  Jefferson  Co.  Bank,  9  Cow. 

204,  p.  (50. 
Watson,  53  Me.  300,  p.  120. 


Woodin  v.  Foster,  16  Barb.  146,  p.  109. 
Woodruff  v.  McHarry,  56  111.  218,  p.  33. 
Woodthorpe  v.  Lawes,  2  M.  &  W.  109, 

p.  124. 
Wooley  v.  Clements,  11  Ala.  220,  p. 

106. 
Worcester  Bank  v.  Wells,  8  Met.  107, 

p.  94. 

Worley  u.Waldran,  3  Sneed,  548,  p.  143. 
Wright  v.  Barnard,  2  Esp.  700,  p.  137. 
v.  Bundy,  11  IndT  398,  p.  155. 
Wynn  v.  Alden,  4  Den.  163,  p.  154. 

Y. 

Young  v.  Young,  18  Minn.  90,  pp.  64,  07. 
v.  Bryan,  C  Wheat.  146,  p.  111. 
v.  Bennett,  7  Bush,  477,  p.  116. 


INDEX. 


INDEX. 


Acceptance — presentment  for,  87. 

by  form,  how  made,  88.  • 

rights  of  drawee  on,  90. 

effect  of  unreasonable  delay,  90. 

to  be  made  in  writing,  93. 

by  whom  to  be  written,  94. 

when  made  by  agent,  rights  of  holder,  94. 

by  agent,  how  made,  94. 

statute  provisions  in  certain  States,  95. 

time  given  for,  95. 

partial  or  conditional,  effect  of,  96. 

effect  of  qualified  acceptance,  97. 

for  honor,  97. 

for  honor  of  drawer,  98. 
Acceptance  -waived— effect  of  .words,  88. 
Acknowledgment— of  deeds,  before  whom  may  be  taken,  16. 

effect  of,  28. 

literal  compliance  with  forms  not  necessary,  29. 

essentials  of  certificate,  29. 

identity  of  party,  30. 

identity,  how  proved,  31. 

as  to  officer  taking,  31. 

to  be  subscribed  by  officer,  33. 

where  officer  a  party  in  interest,  33. 

deputy,  when  may  take,  33. 

place  where  made,  33. 

necessity  of  an  official  seal,  38. 

certificate  of  probate  deeds,  37. 

by  married  woman,  theory  of  the  law,  38. 

how  required  under  the  common  law,  38. 

requisites  of  certificate,  38. 

private  examination,  how  conducted,  40. 

wife  to  be  made  to  know  contents,  41. 

certificate  to  state  "voluntary  free  act,"  42. 

that  wife  does  not  wish  to  retract,  44. 

effect  of  certificate  as  against  wife,  45. 

liability  of  notary  for  invalid  act  of,  4(>. 

statute  provisions  in  certain  States,  48. 

taken  out  of  State,  but  within  United  States,  59. 

taken  out  of  United  States  in  foreign  countries,  60. 

in  foreign  countries,  by  whom  may  be  taken,  60. 


360  INDEX. 

Acknowledgment — Continued. 

general  provisions  as  to,  61. 

taken  in  Canada,  61. 

in  Great  Britain  and  Ireland,  61. 

how  attested,  160. 

forms  of,  170-20G. 
Actuarius — term  denned,  2. 
Affidavit— power  to  take,  19. 

power  under  United  States  laws,  21. 

under  pension  laws,  22: 

required  by  mining  laws,  22. 

authority  of  notaries  to  take,  62. 

definition  of,  63. 

venue  in,  presumptions  as  to,  64. 

to  be  signed  by  Affiant,  64. 

oath  and  jurat  to,  65. 

officers  qualified  to  take,  63. 

as  to  the  use  of  a  seal,  67. 

to  be  filed  by  commissioner  of  deeds,  161. 

forms  of,  207-214. 
Agent— may  make  presentment  of  bill,  88. 

effect  of  delay  by,  92. 

acceptance  by,  94, 

presumption  of  authority  of.  98. 

who  may  act  as,  100. 

notice  of  dishonor  by,  124. 
Agreement— See  FORMS. 
Agora — origin  of  term,  2. 
Alabama— qualifications  essential  to  appointment  as  notary,  12. 

notaries  cannot  take  depositions,  19. 

who  may  discharge  duties  of  notary,  19. 

requirements  of  notarial  seal,  24. 

certificate  of  acknowledgment  of  married  woman,  44. 

statute  provisions  as  to  acknowledgments,  48. 

as  to  acceptances,  95. 

time  allowed  for  acceptance,  96. 

acceptance,  when  presumed,  96. 

term  of  office  of  commissioner  of  deeds,  159. 

form  of  acknowledgment,  170. 

form  of  depositions,  215. 

Application  for  office— of  commissioner  of  deeds,  159. 
Appointment— of  notaries,  ancient  rule  of,  5. 

in  modern' times  appointed  by  executive,  9. 

rule  in  England,  9. 

in  United  States,  power  of  State  governors,  10. 

qualifications  for,  12. 

period  of  office,  13. 

of  commissioners  of  deeds,  158. 

number  of  commissioners  to  each  State,  159. 

term  of  office  of  commissioners,  159. 

publication  of  appointments,  165. 
Argentarii— term  defined,  1. 
Arizona — acknowledgment  of  deeds  out  of  Territory,  59. 

term  of  office  of  commissioners  for,  160. 


IXDEX.  361 


Arizona  —  Continued. 

fee  paid  for  commission,  162. 

form  of  acknowledgment,  171. 

form  for  deposition,  216. 
Arkansas—  appointment  of  notaries  in,  11. 

notarial  seal  of,  25. 

certificate  of  acknowledgment  of  married  woman.  44. 

statute  provisions  as  to  acknowledgments,  48. 

acceptance  of  bill  under  statute,  95. 

time  allowed  for  acceptance,  96. 

acceptance,  when  presumed,  96. 

term  of  office  of  commissioner  of  deeds.  159. 

forms  of  acknowledgment,  171. 

form  for  deposition,  217. 

Attorney-at-law  —  when  may  take  affidavit,  67. 
Authentication—  of  acts  of  commissioner  of  deeds,  163. 
Assignment—  See  FORMS. 


Bank  usage  —  as  to  notice  of  maturity  of  note,  109. 

as  to  notice  of  dishonor,  127. 
Bills  at  sight  —  statutory  provisions  as  to,  87. 

where  not  entitled  to  grace,  87. 
Bill  of  exchange—  presentment,  when  to  be  made,  87. 

when  to  be  protested,  111. 
Bond  —  of  notary,  where  required,  12. 

required  of  commissioner  of  deeds.  161. 

form  of,  321. 

See  FORMS. 
Bill  of  sale  —  See  FORMS. 

o. 

California  —  qualifications  essential  to  appointment  as  notary,  "12. 
term  of  office  of  notary,  14. 
preservation  of  records  of,  23. 
noterial  seal  of,  25. 
authority  of  justice  of  peace,  35. 
certificate  to  acknowledgment  by  married  woman,  41. 
certificate,  what  to  state,  42. 
insufficiency  of  certificate,  47. 
liability  of  notary  on  official  bond,  47. 
statute  provisions  as  to  acknowledgment  of  deeds,  48. 
acknowledgments  taken  out  of  State,  59. 
in  foreign  countries,  who  may  take,  60. 
who  may  take  affidavits,  67. 
sight-bills  not  entitled  to  grace,  87. 
acceptance  of  bills,  statute  provisions,  95. 
time  allowed  for  acceptance,  96. 
acceptance,  when  presumed,  96. 
time  within  which  demand  to  be  made,  103. 
protest,  by  whom  to  be  made,  113. 
essentials  of  protest,  115. 


362  INDEX. 

California— Continued. 

what  to  appear  in  certificate,  116. 

notice  of  dishonor  by  mail,  how  given,  132. 

notarial  protest,  what  to  state,  143. 

term  of  office  of  commissioner  of  deeds.  160. 

official  seal  of  commissioner,  162. 

fees  paid  to  commissioner,  1G4. 

publication  of  appointment  of  commissioner,  165. 

forms  of  acknowledgment  for,  173-175. 

form  for  deposition,  218. 
Canada — acknowledgment  of  deeds  in,  61. 

forms  of  acknowledgments  in,  204,  205. 
Cancellarius— term  denned,  4. 
Caption— to  deposition,  69. 
Certification — of  official  character  of  officer,  80. 

what  States  require  it,  81. 
Certificate  of  acknowledgment— of  notary,  28. 

omissions  fatal,  28. 

essentials  of,  29. 

literal  compliance  not  necessary,  29. 

identification  of  party,  30. 

locality  must  appear  in,  34. 

when  defective,  36. 

of  acknowledgment  of  married  woman,  38. 

when  sufficient,  42. 

statute  provisions  regarding,  140. 

of  what  evidence,  142. 

character  of  as  evidence,  143. 

mode  of  rebuttal  of,  146. 
Certificate  of  probate — of  deed,  37. 
Chancellor — origin  of  term,  4. 
Clerk — may  make  demand  for  payment,  99. 
Colorado — period  of  appointment,  14. 

statute  provisions  as  to  acknowledgments,  49. 

seal  not  to  affect  negotiability  of  paper,  85. 

sight-bills  not  entitled  to.  grace,  87. 

forms  of  acknowledgment  for,  175. 

form  for  deposition,  219. 
Commission— form  of  in  England,  9. 
Commissioner  of  deeds — a  State  officer,  32. 

appointment  of,  158. 

qualifications  of,  158. 

number  appointed  in  certain  States,  159. 

period  for  which  appointed,  159. 

power  of,  160. 

conditions  precedent  to  be  complied  with,  161. 

fee  paid  for  commission,  161. 

requirements  as  to  seal,  162. 

authentication  of  acts,  163. 

fees  of,  164. 

appointments  published,  165. 
Common  law— married  women,  how  regarded  by,  38. 

notarial  acts  as  evidence,  138. 

notarial  certificates  as  evidence,  139. 


INDEX.  363 

Computation — of  time  in  reference  to  maturity  of  negotiable  paper,  105. 

rule  regarding  Sundays  and  holidays,  106. 
Conditions  precedent — to  right  of  commissioner  to  act,  101. 
Connecticut— term  of  office  of  notary,  14. 

extent  of  jurisdiction  of  notary,  20. 

records  of  notary,  23. 

presumption  of  official  authority,  35. 

statute  provisions  as  to  acknowledgments,  49. 

sight-bills  not  entitled  to  grace,  57. 

term  of  office  of  commissioner  of  deeds,  100. 

forms  of  acknowledgment  for,  176. 

form  for  deposition,  219. 
Contract — See  FORMS. 
Cursores— term  defined,  1. 
Customs  and  usages— to  govern  on  presentment  for  acceptance,  92. 

of  banks  as  to  notice  of  dishonor,  127. 


D. 

Dakota— a  seal  not  to  affect  negotiability  of  paper,  85. 

form  of  acknowledgment  for,  176. 

form  for  deposition,  220. 
Date— of  protest  to  appear  in  certificate,  115. 

of  certificate  of  notice,  151. 
Days  of  grace— allowance  of,  87. 
Deed— unacknowledged,  validity  of,  29. 

See  FORMS. 
Definitions— affidavit,  63. 

agentarii,  1. 

cancellarius,  4. 

cursores,  1. 

deposition,  63. 

month  construed,  105. 

notarius,  notarii,  1,  2. 

notary  a  scribe,  1. 

scribaj,  1. 

tabellio,  2. 

tabelliones,  1. 

tabularii,  1. 

tribunus,  2. 
Delaware— term  of  office  of  notary,  14. 

notaries  cannot  take  depositions,  19. 

notarial  records  as  evidence,  23. 

notarial  seal,  25. 

certificate  of  acknowledgment  of  married  woman,  42. 

statute  provisions  as  to  acknowledgments,  49. 

acknowledgment  of  deeds  out  of  State,  59. 

sight-bills  not  entitled  to  grace,  87. 

notarial  protest  as  evidence,  141. 

term  of  office  of  commissioner  of  deeds,  1GO. 

fees  paid  commissioner  of  deeds,  104. 

forms  of  acknowledgment  for,  177. 

form  for  deposition,  221. 


364  INDEX. 

Demand— duty  of  notary,  85. 

mode  of  making,  108. 
Depositions — power  of  notary  to  take,  10. 

power  under  United  States  laws,  21. 

how  taken,  23. 

may  be  taken  by  notaries,  68. 

as  to  the  caption  of,  69. 

mistakes  in  names  in  caption,  69. 

caption  should  state  at  whose  request  taken,  70. 

certificate  to,  generally,  71. 

immaterial  omissions  in  certificate,  71. 

as  to1  swearing  witness,  72. 

identity  of  witness,  73. 

writing  out,  who  authorized,  73. 

manner  of  writing  it  out,  74. 

language  of  it,  74. 

presence  of  parties,  75. 

place  where  taken,  76. 

powers  of  notaries  in  taking,  76. 

adjournment  during  taking,  78. 

should  be  subscribed,  79. 

certification  of  official  character  of  officer,  80. 

certification  required  in  certain  States,  81. 

return  of,  82. 

Deputy  clerk— may  take  acknowledgments,  33. 
Dishonor — fact  to  appear  in  notice  of  protest,  121. 

sufficiency  of,  122. 
District  of  Columbia — certificate  of  acknowledgment  by  married  •woman,  44. 

forms  of  acknowledgment  for,  178. 


E. 

England — non-negotiable  paper,  what  is,  85. 
Evidence— admission  of  affidavits,  62. 

by  deposition,  64, 

notarial  acts  as,  136. 

judicial  notice  of  notarial  seal,  136. 

certificate  and  seal  of  notary,  137. 

notarial  acts  under  common  law,  138. 

certificate  of  protest  under  common  law,  139. 

certificate,  of  what  facts  evidence,  142. 

character  of  evidence,  143,  154. 

rebutting  certificate,  145,  155. 

certificate  need  not  state  at  whose  request  made,  151. 

certificate  to  be  dated,  351. 

certificate  to  be  under  seal,  152. 

presumptions  in  favor  of,  153. 

parol  evidence  affecting  certificate,  153. 

impeachment  for  fraud  or  collusion,  156. 

notarial  certificate  made  out  of  State,  146. 

sufficiency  of  certificate,  147. 

as  to  manner  of  giving  notice,  149. 

when  notice  sent  by  mail,  150. 


INDEX.  365 


Evidence— -Continued. 

certificate  to  show  notice  of  dishonor.  150. 

records  of  deceased  notary,  154. 

faith  and  credit  given  to  official  acts,  163. 
Exceptor — office  of,  2. 
Exchange— rise  or  fall  in  rate,  effect  of,  91. 
Excuses— for  failure  to  demand,  110. 


F. 

Faith  and  credit— given  to  public  documents,  3 
to  notarial  acts,  137 
to  official  acts,  155. 
to  notarial  certificate,  155. 

impeachment  of  certificate  for  fraud  or  collusion,  150. 
Pee — paid  by  commissioner  for  appointment,  159,  Ifi2. 

paid  to  commissioner  of  deeds,  164. 
Florida— appointment  of  notary,  period  of  service,  12. 
amount  of  bond  given  by  notary,  13. 
powers  of  notary,  18. 
notaries  cannot  take  depositions,  19. 
records  of,  as  evidence,  23. 
statute  provisions  as  to  acknowledgments,  50. 
acknowledgments  taken  out  of  State,  59. 
seal  not  to  affect  negotiability  of  paper,  85. 
notarial  protest  as  evidence,  141. 
term  of  office  of  commissioner  of  deeds,  150. 
forms  of  acknowledgment  for,  179, 180 
forms  for  deposition,  222. 
Forms — of  acknowledgments,  170-206. 
affidavits,  207-214. 
agreement  or  contract,  300. 

for  sale  of  real  estate,  302. 

for  warranty  deed,  303. 
assignment  to  creditors,  312. 

of  judgment,  310. 

of  mortgage,  New  York,  288. 
California,  289. 
Illinois,  290. 

of  lease,  319,  320. 

of  patent,  312. 
bill  of  sale,  298. 
bond,  309. 

of  notary.  321. 
building  contract,  306-308. 
chattel  mortgage,  293-29P. 
contract— See  Agreement, 
deed,  warranty,  full  covenant,  273. 

warranty,  California  form,  275. 

warranty,  Illinois  form,  271 

warranty,  Kentucky  form,  277. 

•warranty,  Kansas  form,  277. 

quit-claim,  New  York  form,  278. 


366  INDEX. 

Forms — Continued. 

deed,  quit-claim,  Illinois  form,  278. 

quit-claim,  Michigan  form,  27'J. 

bond  for,  301. 
depositions,  215-2G3. 
homestead,  claim  affidavit  for,  212. 

soldier's  claim  affidavit  for,  213. 

Indian  affidavit  for,  213. 
lease,  general  form,  297. . 

California  forms,  314,  315. 

Ohio  forms,  316,  317. 

•with  security,  318. 

assignment  of,  31D,  320. 
patent,  affidavit  of  applicant,  214. 
power  of  attorney-general,  298. 

special,  298. 

pre-emption  claim,  211,  212. 
proof  of  claim  in  bankruptcy,  209,  210. 
proof  of  claim  against  estate,  211. 
protest  for  non-acceptance,  264,  265. 

non-payment,  264,  265,  266,  267. 

notice  of,  268. 
mortgage,  New  York  form,  279. 

California  form,  282. 

Illinois  form,  283-285. 

with  dower,  Ohio,  385. 

Michigan  form,  286. 

Indiana,  288. 

assignment  of,  288-290. 

release  of,  290. 

satisfaction  of,  291,  292. 

of  chattels,  294. 
release  of  mortgage,  290. 
satisfaction  of  mortgage,  291,  292. 
ship's  protest,  270. 

entry  or  note  of,  271.*.. 

regular  or  extended  form,  272. 
verification  of  pleading,  207. 
will,  321. 

of  appointment  of  notary  in  England,  9. 
requisites  of  deposition,  68. 
of  caption  to  deposition,  69. 
names  of  parties,  69. 
what  caption  should  state,  70. 
certificate  to  deposition,  71. 
immaterial  omissions,  71. 
of  notice  of  protest,  119. 
omissions  in  notice  of  protest  fatal,  120. 
of  certificate  in  Iowa,  148. 
Forum — origin  of  term,  2, 
France — classes  of  notaries  in,  14. 
Fraud — impeachment  of  certificate  for,  lOo. 


INDEX.  367 


G. 


Georgia — appointment  of  notaries  in,  11. 

qualifications  necessary,  13. 

period  for  which  appointed,  14. 

powers  of  notaries  in,  18. 

notaries  cannot  take  depositions,  19. 

notarial  seal,  25. 

statute  powers  as  to  acknowledgments,  50. 

acknowledgments  out  of  State,  59. 

seal  not  to  affect  negotiability  of  paper,  85. 

sight-bills  not  entitled  to  grace,  87. 

protest,  when  not  necessary,  118. 

term  of  office  of  commissioner  of  deeds,  159. 

powers  of  commissioners  of  deeds,  160. 

acknowledgments,  how  attested,  160. 

forms  of  acknowledgment  for,  180. 

form  for  deposition,  223. 

Governor — power  of  appointment  of  notary,  10. 
Grace — days  of,  where  allowed,  87. 
Great  Britain  and  Ireland— acknowledgments  of  deeds  in,  61. 


H. 

History  of  office  of  notary — origin  remote,  1. 

under  Roman  law,  1. 

functions  of  the  tabelliones,  2. 

authenticity  of  acts,  3. 

when  acts  obtained  public  recognition,  4. 

of  notaries  in  England,  5. 

in  reign  of  Henry  V,  6. 

acts  of  solemn  nature  executed  before  notaries,  6. 

effect  of  Reformation  as  to  office  and  duties,  7. 
Holder — of  negotiable  paper,  rights  of,  133. 
Holidays — rule  as  to'computation  of  time,  106. 


I. 

Idaho— acknowledgment  of  deeds  out  of  Territory,  59. 

form  of  acknowledgment  for,  181. 

form  for  deposition,  224. 
Identity— of  party  to  appear  on  notarial  certificate,  30. 

how  proved,  31. 
Illinois— appointment  of  notaries,  10,  11. 

amount  of  bond,  13. 

period  for  which  appointed,  14. 

records  of  notaries  as  evidence,  24. 

notarial  seal,  25. 

essentials  to  validity  of  acknowledgments,  36. 

statute  provisions  as  to  acknowledgments,  50. 


368  INDEX. 

Illinois—  Continued. 

seal  not  to  affect  negotiability  of  paper,  85. 

sight-bills  not  entitled  to  grace,  87. 

impeachment  of  certificate  for  fraud,  156. 

statute  provisions  as  to  qualifications  of  commissioners,  159. 

number  of  commissioners  appointed,  159. 

term  of  office  of  commissioner,  160. 

fee  paid  by  commissioner  of  deeds,  162. 

seal  of  commissioner,  162. 

form  of  acknowledgment  for,  182. 

form  for  deposition,  225. 

Impeachment— of  official  acts  for  fraud  or  collusion,  156. 
Indiana — appointment  of  notaries,  10. 

amount  of  bond  of  notaries,  13. 

period  for  which  appointed,  14. 

records  of,  23. 

notarial  seal,  25. 

certificate  of  acknowledgment  of  married  woman,  41. 

statute  provisions  as  to  acknowledgments,  51. 

form  of  affidavit,  66. 

protest,  when  not  necessary,  118. 

effect  of  notarial  certificate  as  evidence,  146. 

requisites  of  notarial  certificate,  148. 

term  of  office  of  commissioner  of  deeds,  160. 

form  of  acknowledgment  for,  182. 

form  for  deposition,  227.' 
Iowa — qualifications  for  appointment  as  notary,  12. 

term  of  office  of  notary,  14. 

records  of  notary,  23. 

notarial  seal,  24,  25. 

essentials  of  certificate  to  acknowledgments,  34. 

statute  provisions  as  to  acknowledgments,  51. 

use  of  notarial  seal,  67. 

sufficiency  of  notarial  certificate,  148. 

requisites  of  seal  to  certificate,  152. 

term  of  office  of  commissioner,  160. 

seal  of  commissioner  of  deeds,  162. 

fees  paid  to  commissioners,  164. 

publication  of  list  of  commissioners,  165. 

form  of  acknowledgment  for,  183. 

form  f6r  deposition,  229. 


J. 

Joint  makers— demand  on,  how  made,  101. 

Judicial  notice — of  acts  of  commissioner  of  deeds,  32. 

of  who  are  county  officers,  34. 

of  notarial  seal,  136. 

Jurisdiction — restriction  to  locality,  20. 
Justice  of  the  peace — powers  of  notaries  as,  18,  19. 

authority  to  take  acknowledgments,  35. 
Judgment— assignment  of. 
See  FORMS. 


INDEX.  369 


Kansas— amount  of  bond,  of  notaries,  13. 

period  for  -which  appointed,  14. 

notarial  seal,  25. 

statute  provisions  as  to  acknowledgments,  52. 

seal  not  to  affect  negotiability  of  paper,  85. 

acceptances,  statute  provisions,  95. 

time  allowed  for  acceptance,  96. 

acceptance,  when  presumed,  96. 

notarial  protests  as  evidence,  141. 

term  of  office  of  commissioner  of  deeds,  159. 

form  of  acknowledgment,  183. 

form  for  deposition,  230. 
Kentucky — appointment  of  notaries,  11. 

amount  of  bond  of  notary,  13. 

period  for  which  appointed,  14. 

notaries  no  power  to  take  acknowledgments,  16, 

notarial  seal,  25. 

validity  of  acknowledgments,  36. 

acknowledgment  by  married  woman,  45. 

statute  provisions  as  to  acknowledgments,  52. 

notice  of  dishonor,  where  to  be  sent,  131. 

term  of  office  of  commissioners  of  deeds,  160. 

form  of  acknowledgment  for,  183. 

form  for  deposition,  232. 


JL. 

Laches — effect  of  delay  in  presentment,  91. 

Lease — See  FORMS. 

Local  customs — to  govern  time  for  presentment,  92, 

Logographi— term  defined,  1. 

Louisiana — appointment  of  notaries,  11. 

amount  of  bond  of  notary,  13. 

powers  and  duties  of  notaries,  18. 

•where  may  take  depositions,  19. 

notarial  seal  of,  25. 

statute  provisions  as  to  acknowledgments,  62. 

acknowledgments  out  of  State,  59. 

sight-bills  not  entitled  to  grace,  87. 

forms  of  acknowledgment  for,  184-186. 

form  for  deposition,  233. 
Lower  Canada— who  may  discharge  duties  of  notary,  19. 


M. 

Marriages— power  of  notaries  to  solemnize,  18. 
Married  -woman— acknowledgment  of  deed  by,  38. 
requisites  of  certificate  to,  38. 


370  INDEX. 

Married  woman — Continued. 

compliance  with  statute  requirements,  38. 

certificate  of  acknowledgement,  what  to  state,  44. 
Maine — notaries,  restriction  as  to  powers  of,  16. 

acknowledgment  of  deeds,  17. 

notarial  seal,  2G. 

statute  provisions  as  to  acknowledgments,  53. 

sufficiency  of  notarial  certificate,  149. 

term  of  office  of  commissioners,  159. 

form  of  acknowledgment  for,  186. 

form  for  deposition,  234. 
Maryland — appointment  of  notaries,  11. 

qualifications  for  appointment,  12. 

amount  of  bond  of  notary,  13. 

power  to  take  acknowledgments,  16,  17,  53. 

notaries  cannot  take  depositions,  19. 

extent  of  jurisdiction  of  notaries,  21. 

notarial  records,  24. 

notarial  seal,  26. 

oral  testimony  of  notarial  certificate,  154. 

commissioners,  how  appointed,  158. 

term  of  office  of  commissioner,  159. 

form  of  acknowledgment  for,  186. 

form  for  deposition,  235. 
Massachusetts— appointment  of  notaries,  11. 

for  what  term  appointed,  14. 

notaries  cannot  take  depositions,  19. 

who  may  take  acknowledgments,  35,  36. 

statute  provisions  as  to  acknowledgments,  53. 

seal  not  to  affect  negotiability  of  paper,  85. 

acceptance,  time  allowed  for,  96. 

when  presumed,  96. 

notarial  protest  as  evidence,  141. 

commissioners  of  deeds,  how  appointed,  158. 

seal  of  commissioner  of  deeds,  163. 

form  of  acknowledgmerit.for,  187. 

form  of  deposition,  237. 
Michigan— appointment  of  notaries,  11. 

amount  of  bond  of  notary,  13. 

period  for  which  appointed,  14. 

notaries  cannot  take  depositions,  19. 

extent  of  jurisdiction  of  notaries,  21. 

certificate  of  acknowledgment  by  married  woman,  41. 

statute  provisions  as  to  acknowledgments,  54. 

note,  when  negotiable,  86. 

acceptance  of  bill,  statute  provisions,  95. 

notarial  certificate,  how  rebutted,  145. 

application  for  office,  and  fee  for  appointment  as  commissioner,  159. 

term  of  office  of  commissioner,  160. 

form  of  acknowledgment  for,  188. 

form  of  deposition,  238. 
Mining  laws— affidavit  required  by,  22. 
Minnesota — appointment  of  notaries,  11. 

amount  of  bonds  of  notaries,  13. 


INDEX.  371 


Minnesota—  Continued. 

term  of  office  of  notary,  14. 

notarial  seal,  26. 

statute  provisions  as  to  acknowledgments,  54. 

who  may  take  affidavits,  67. 

acceptance,  statute  provisions,  95. 

term  of  office  of  commissioner  of  deeds,  159. 

form  of  acknowledgment  for,  189. 

form  of  deposition,  239. 
Mississippi—  amount  of  bond  of  notary,  1& 

powers  of  notaries,  17. 

who  to  act  as  notaries,  18. 

notaries  cannot  take  depositions,  19. 

notarial  seal,  26. 

statute  provisions  as  to  acknowledgments,  54. 

acknowledgments  out  of  State,  59. 

notarial  protest  as  evidence,  141. 

term  of  office  of  commissioner  of  deeds,  160. 

fee  paid  for  commission,  162. 

form  of  acknowledgment  for,  189. 

form  of  deposition,  240. 
Missouri—  amount  of  bond  of  notary.  13. 

term  of  office  of  notary,  14. 

notarial  seal,  26. 

statute  provisions  as  to  acknowledgments,  54. 

sight-bills  not  entitled  to  grace,  87. 

acceptance,  statute  provisions,  95. 

time  allowed  for  acceptance,  96. 

acceptance,  when  presumed,  96. 

notarial  protest  as  evidence,  141. 

term  of  office  of  commissioner  of  deeds,  159. 

sufficiency  of  demand  for  payment,  108. 

commissioner  of  deeds,  how  appointed,  158. 

term  of  office  of  commissioner,  160. 

form  of  acknowledgment  for,  190. 

form  of  deposition,  241. 
Montana—  form  of  deposition  in,  243. 
Month  —  construction  of  term,  105. 
Mortgage—  See  FOKMS. 


Nebraska—  amount  of  bond  of  notary,  13. 

term  of  office  of  notary,  14. 

notarial  seal,  26. 

statute  provisions  as  to  acknowledgmentSy  55. 

seal  not  to  affect  negotiability  of  paper,  85. 

term  of  office  of  commissioner  of  deeds,  160. 

seal  of  commissioner,  163. 

form  of  acknowledgment,  192. 

form  of  deposition  in,  243. 
Negotiable  paper—  duties  of  notaries  relative  to,  84. 

qualities  essential  to,  85. 

presentment  for  acceptance,  87. 


372  INDEX. 

Negotiable  paper — Continued. 

presentment  for  payment,  98. 

computation  of  time  on,  165. 

when  considered  dishonored,  108. 

protest  "for  dishonor,  110. 

notice  of  protest  of,  118. 

liability  of  notary  for  defective  protest,  134. 
Nevada — amount  of  bond  of  notary,  13. 

term  of  office  of  notary,  14. 

notarial  seal,  26. 

certificate  of  acknowledgment  by  married  woman,  45. 

statute  provisions  as  to  acknowledgments,  55. 

acceptance  to  be  in  writing,  95. 

term  of  office  of  commissioner  of  deeds,  160. 

fee  paid  for  commission,  162. 

form  of  acknowledgment,  191. 

form  of  deposition  in,  244. 
New  Hampshire — appointment  of  notary,  11. 

term  of  office  of  notary,  14. 

notarial  records,  24. 

statute  provisions  as  to  acknowledgments^?. 

requisites  of  foreign  certificate,  146. 

requisites  of  notarial  certificate,  148. 

notice  sent  by  mail,  150. 

requisites  of  seal  to  certificate,  152. 

number  of  commissioners  of  deeds,  159. 

term  of  office  of  commissioners,  160. 

official  acts,  how  authenticated,  163. 

seal  of  commissioner  of  deeds,  163. 

form  of  acknowledgment,  192. 

form  of  deposition  in,  246. 
New  Jersey — notary,  powers  restricted,  16. 

acknowledgments  before,  when  taken,  17. 

notaries  cannot  take  depositions,  19. 

validity  of  affidavits  by  notaries  formerly  questioned,  20. 

statute  provisions  as  to  acknowledgments,  56. 

commissioner  of  deeds,  how  appointed,  158. 

term  of  office  of  commissioner,  160. 

fees  paid  commissioner,  164. 

form  of  acknowledgment  for,  192. 

form  of  deposition  in,  247. 
New  Mexico— acknowledgment  of  deeds  out  of  Territory,  59. 

form  of  acknowledgment  for,  193. 
New  York— appointment  of  notary,  11. 

term  of  office  of  notary,  14. 

notaries  cannot  take  depositions,  19. 

extent  of  jurisdiction  of  notaries,  21. 

records  of,  as  evidence,  23. 

notarial  seal,  26. 

sufficiency  of  certificate  of  acknowledgment,  35. 

acknowledgment  by  married  woman,  39. 

statute  provisions  as  to  acknowledgments,  56. 

acknowledgments  out  of  State,  60. 

acknowledgments  in  foreign  countries,  60. 


INDEX. 

New  York— Continued. 

note,  when  non-negotiable,  86. 

sight-bills  not  entitled  to  grace,  87. 

acceptance,  what  not  sufficient,  94. 

must  be  in  writing,  95. 

time  allowed  for  acceptance,  96. 

when  acceptance  presumed,  96. 

notary's  clerk  cannot  demand  payment,  99. 

forms  of  acknowledgment  for,  194-196. 

form  of  deposition  in,  248. 
North  Carolina— acknowledgments,  before  whom  taken,  17. 

power  to  administer  oatlis,  20. 

notarial  records,  as  evidence,  23. 

certificate  of  probate  of  deed,  37. 

statute  provisions  as  to  acknowledgments,  56. 

acknowledgments  out  of  State,  59. 

seal  not  to  affect  negotiability  of  paper,  85. 

term  of  office  of  commissioner  of  deeds,  159. 

publication  of  list  of  commissioners,  165. 

form  of  acknowledgment  for,  196. 

form  of  deposition  in,  249. 
Notarial  acts— when  first  obtained  public  authority,  4. 

how  obtained  recognition,  4. 

authentication  of  treaties,  6. 

what  essential  to  validity  of,  27. 

as  evidence,  136. 

certificate  of  acknowledgment,  154. 
Notarial  protest— as  evidence,  141. 
Notarial  records— as  evidence,  139. 
Notarial  seal— requirements  of,  24,  25. 

conclusiveness  of  as  evidence,  154. 
Notaries — punishment  under  Scotch  law,  4. 

nomination  of,  under  common  law,  5. 

before  the  Norman  conquest,  5. 

appointments  by  the  Pope,  5. 

restriction  on  Papal  power,  by  statute  of  praemunire,  5. 

in  the  reign  of  Henry  V,  6. 

in  the  reign  of  Henry  VUl,  7. 

in  time  of  Edward  IV,  6. 

under  Francis  I,  of  France,  7. 

under  the  Reformation,  7. 

classes  of  in  France,  14. 

power  and  duties  of,  14. 

functions  of,  15. 

power  under  United  States  laws,  21. 

power  to  take  depositions,  22. 

extent  of  jurisdiction,  34. 

powers,  how  exercised,  76. 

form  of  bond,  321. 
Notarii— term  defined,  1. 
Notarius— term  defined,  2. 
Notary — defined  as  a  scribe,  1. 

character  of  functions  in  reign  of  James  I,  8. 

in  Scotland  before  the  Reformation,  8. 


373 


374 


INDEX. 


Notary — Continued. 

qualifications  necessary,  10. 

liability  for  invalid  acknowledgment,  46. 
Notice  by  mail— when  and  how  made,  129. 

on  temporary  residents,  129. 

place  where  to  be  sent,  130. 
Notice  of  demand— for  payment,  122. 

who  to  give  notice,  123. 

notice  by  agent,  124. 
Notice  of  dishonor— by  mail,  127. 

who  to  receive  notice,  125. 

when  to  be  personal,  126. 

by  personal  service,  128. 

service  by  mail,  when  and  how  made,  129L 

service  on  temporary  resident,  129. 

place  where  to  be  sent,  130. 

time  within  which  to  be  given,  131. 

to  be  shown  by  certificate,  150. 

sufficiency  of  notice,  151. 
Notice  of  maturity — bank  usages,  109. 
Notice  of  protest — duty  of  notary,  85. 

sufficiency  of,  114. 

to  whom  must  be  given,  118, 

manner  of  giving,  118. 

form  of,  119. 

as  to  description  of  instrument,  119. 

fact  of  dishonor  to  appear,  121. 

notice  of  demand  for  payment,  122. 

party,  to  give  notice,  123, 

notice  by  agent,  124. 

who  to  receive  notice,  125. 

when  parties  reside  in  same  place,  126. 

who  regarded  as  in  same  place,  127. 

personal  service  of,  128. 

parties  residing  in  different  places,  129. 

service  on  temporary  residents,  129. 

place  where  to  be  sent,  130. 

time  within  which  to  be  given,  131. 

what  hour  is  reasonable,  133. 

intervening  holidays  counted  out,  133. 

allowance  of  a  day  to  notify  predecessor,  133L 

liability  of  notary  for  failure  to  make,  134. 

notice,  how  given,  149. 

when  sent  by  mail,  150. 

forms  of,  268-270. 

o. 

Oath— power  to  administer,  19,  62. 

power  conferred  by  statute,  20. 

oath  and  jurat  to  affidavit,  65. 

to  be  taken  by  commissioner  of  deeds,  161. 
Office  and  officers— origin  of  office  of  notary  remote,  1. 

history  of  office  of  notary,  1. 


INDEX.  375 

Office  and  officers— Continued. 

duties  of  in  general,  16. 

States  where  notaries  do  not  take  depositions,  16. 

where  may  act  as  justices  of  the  peace,  18. 

where  notaries  take  depositions,  19. 

power  to  take  affidavits,  19. 

local  jurisdiction  of  notaries,  20. 

powers  and  duties  under  United  States  laws,  21. 

powers  and  duties  under  bankrupt  laws,  22. 

affidavits  required  by  mining  laws,  22. 

notaries  may  take  depositions  in  certain  cases,  22. 

duty  of  notaries  as  to  keeping  records,  23. 

requirements  as  to  notarial  seals,  24. 

authority  to  take  affidavits,  G2. 

who  may  take  affidavits,  GG. 

to  take  depositions,  68. 

duties  relative  to  negotiable  paper,  84. 

See  TERM  OF  OFFICE. 
Official  acts— how  authenticated,  67. 
Official  bonds — of  notaries,  12. 

of  commissioner  of  deeds,  161. 
Official  character— certificate  of,  80. 

certification,  in  what  States  required,  81. 
Official  seal— requisites  of.  24. 

what  constitutes,  24. 

necessity  for,  35. 
Ohio — appointment  of  notaries  in,  10. 

amount  of  bond  of  notary,  13. 

term  of  office  of  notary,  14. 

notarial  seal  of,  26. 

certificate  of  acknowledgment  made  by  married  woman,  43 

statute  provisions  as  to  acknowledgments,  56. 

seal  not  to  affect  negotiable  paper,  85. 

sight-bills  not  entitled  to  grace,  87. 

notaries'  certificates  as  evidence,  144. 

term  of  office  of  commissioner  of  deeds,  160. 

fee  paid  by  commissioner,  162. 

fees  paid  to  commissioners,  164. 

form  of  acknowledgment  for,  198. 

form  of  deposition,  250. 
Oregon— amount  of  bond  of  notary,  13. 

term  of  office  of  notary,  14. 

notarial  records,  as  evidence,  24. 

statute  provisions  as  to  acknowledgments,  57. 

acceptance  to  be  in  writing,  95. 

term  of  office  of  commissioner  of  deeds,  160. 

seal  of  commissioner  of  deeds,  163. 

form  of  acknowledgment  for,  198. 

form  of  deposition  in,  250. 


Parol  evidence— how  far  may  affect  certificate  of  notary,  153. 
Partners — demand  on,  how  made,  101. 


376  INDEX. 

Partnership— who  to  receive  notice  of  dishonor,  125. 

notice  in  case  of  death,  125. 

notice  in  case  of  bankruptcy,  126. 
Pennsylvania— qualifications  requisite  for  appointment  as  notary,  12. 

amount  of  bond  of  notary,  13. 

term  of  office  of  notary,  14. 

notarial  seal  of,  26. 

presumption  of  authority  to  take  acknowledgments,  32. 

statute  provisions  as  to  acknowledgments,  57. 

sight-bills  not  entitled  to  grace,  87. 

notarial  protest  as  evidence,  141. 

effect  of  certificate  of  notary  as  evidence,  146. 

requisites  of  certificate  of  notary,  147. 

term  of  office  of  commissioner  of  deeds,  159. 

form  of  acknowledgment  for,  198. 

form  of  deposition  in,  253. 
Performance— time  of  construed,  104. 
Personal  service  of  notice — how  made,  127. 
Place  of  presentment— for  payment,  106. 

to  appear  in  certificate  of  protest,  115. 
Powers — of  notaries  in  taking  depositions,  76. 

of  commissioners  of  deeds,  158. 
Power  of  attorney— See  FOBMS. 
Presentment— duty  of  notary  in  making,  85. 

by  whom  to  be  made,  88. 

where  to  be  made,  89. 

mode  of  making,  90. 

time  within  which  to  be  made,  90. 

excuses  for  delay  in  making,  91. 

time  of  day  in  which  to  be  made,  92. 

delay  by  agent,  how  regarded,  92. 

effect  of  local  customs  and  usages,  92. 

presentment  and  demand  to  appear  on  certificate,  116. 
Presentment  for  acceptance— of  negotiable  paper,  87. 

what  should  be  presented,  87. 

by  and  of  whom  should  be  .made,  88. 

place  where  should  be  made,  89. 

mode  of  making,  90. 

time  within  which  should  be  made,  90. 

excuses  for  delay,  91. 

time  of  day  when  to  be  made,  92. 

delay  by  agent,  how  regarded,  92. 

acceptance,  how  given,  93. 

statute  provisions  as  to  mode  of,  95. 

time  given  to  drawee,  95. 

partial  or  conditional  acceptance,  96. 

acceptance  supra  protest,  97. 
Presentment  for  payment — of  negotiable  paper,  98. 

by  whom  demand  to  be  made,  98. 

demand  by  notary  or  clerk,  99. 

to  whom  to  be  made"  100. 

in  case  acceptor  or  maker  is  dead,  101.  ' 

in  case  of  partners,  101. 

when  acceptor  or  maker  cannot  be  found.  101. 


INDEX  377 


Presentment  for  payment— Continued, 
time  for  making  presentment,  102. 
as  to  time  of  day  for  demand,  103. 
computation  of  time,  105. 
rule  regarding  Sundays  and  holidays,  106. 
place  of  making  presentment,  106. 
mode  of  demanding  payment,  108. 
paper,  when  payable  at  bank,  108. 
what  excuses  failure  to  demand,  110. 
Presumptions— in  favor  of  notarial  certificates,  153. 
Primicerius— office  of,  3. 
Promissory  notes — to  be  presented.  112. 

See  NEGOTIABLE  PAPER. 
Probate  deeds — certificate  of,  37. 
Protest — duty  of  notary  as  to,  85. 
of  bill,  when  right  ensues,  96. 
in  case  of  deatli  of  party,  101. 
in  case  of  concealment,  101. 
meaning  and  effect  of  protest,  110. 
what  instruments  subject  to,  111. 
under  seal,  effect  of,  111. 
of  foreign  promissory  notes,  112. 
by  whom  should  be  made,  113. 
manner  of  making,  113. 
•   place  where  made,  113. 
formal  preparation  of,  114. 
contents  and  particulars  of,  115. 
date  of,  115. 

as  to  place  of  presentment,  115. 
presentment  and  demand  must  appear,  116. 
when  protest  unnecessary,  117. 
notice  of,  118. 

faith  and  credit  given  to  notarial  acts,  138. 
of  what  evidence,  147. 
forms  of,  264-272. 

Public  acts — of  commissioners,  how  authenticated,  163. 
Public  documents— origin  of,  3. 
requisites  to  credibility  of,  3. 
mode  of  authentication,  3. 
Public  officers— who  may  take  acknowledgments,  60. 

in 'foreign  countries,  who  may  take  acknowledgments,  60. 


Q. 

Qualification— for  office  of  notary,  12. 

for  office  of  commissioner  of  deeds,  158. 
period  allowed  for,  161. 

R. 

Reasonable  hours — of  business,  what  construed  as,  92. 
Reasonable  time— as  a  question  of  fact,  91. 


378  INDEX. 

Records— duty  as  to  preservation  of,  23. 

of  deceased  notary,  as  evidence,  154. 
Reformation— effect  of  as  to  notaries,  7. 
Rhode  Island — appointment  of  notaries,  11. 

records  of  as  evidence,  23. 

certificate  of  acknowledgment  made  by  married  woman,  45. 

statute  of  provisions  as  to  acknowledgments,  57. 

sight-bills  not  entitled  to  grace,  87. 

notarial  protest  as  evidence,  141. 

form  of  acknowledgment  for,  200. 

form  of  deposition  in,  253. 
Release — See  FORMS. 

s. 

Scribee— definition  of,  1. 
Scriptures  forenses— origin  of,  3. 
Seal— what  deemed  official,  22. 

requirements  of,  24. 

authentication  of  official  acts,  32. 

requirements  of  statute  as  to  use  of,  67. 

judicial  notice  taken  of  official  seal,  136. 

required  to  certificate  of  notary,  152. 

of  commissioners  of  deeds  to  be  provided,  161. 
Secondary  evidence— records  of  deceased  notary,  139, 
South  Carolina— term  of  office  of  notary,  12. 

notarial  records  as  evidence,  23. 

notarial  seal,  27. 

statute  provisions  as  to  acknowledgments,  58. 

term  of  office  of  commissioner  of  deeds,  159. 

publication  of  appointments,  165. 

form  of  acknowledgment  for,  200. 

form  of  deposition  in,  254. 
Statutory  provisions — as  to  protest,  111. 

as  to  acknowledgments  by  married  women,  38, 
Subscription— to  affidavit,  65. 

to  deposition,  79. 
Sunday— rule  regarding,  as  to  negotiable  paper,  106,. 


T. 

Tabellio — term  defined,  2. 
Tabelliones— term  defined,  L 

functions  of  office,  2. 

credit  and  authenticity  of  acts,  3. 

documents  by,  how  made,  4. 
Tabularii— term  defined,  1. 
Tennessee— appointment  of  notaries  in,  11. 

amount  of  bond  of  notary,  13. 

term  of  office  of  notary,  14. 

notarial  seal,  requisites  of,  27. 

statute  provisions  as  to  acknowledgments,  53. 

seal  not  to  affect  negotiability  of  paper,  85. 


INDEX.  379 

Tennessee— Continued. 

sight-bills  not  entitled  to  grace,  87. 

form  of  acknowledgment  for,  201. 

form  of  deposition  in,  255. 
Term  of  office— of  notaries,  14. 

of  commissioners  of  deeds,  159. 
Texas — appointment  of  notaries  in,  11. 

amount  of  bond  of  notary,  13. 

period  for  which  appointed,  14. 

powers  of  notaries,  18. 

notarial  seal,  requisites  of,  27. 

certificate  of  acknowledgment  made  by  married  woman,  45. 

statute  provisions  as  to  acknowledgments,  58. 

term  of  office  of  commissioner  of  deeds,  159. 

form  of  acknowedgment  for,  201. 

f  onn  of  deposition  in,  255. 
Time — when  presentment  should  be  made,  92. 

given  for  acceptance  of  bill,  95. 

day  for  demand  of  payment,  103. 

computation  of,  105. 

rule  as  to  intervening  Sundays  and  holidays,  106. 
Tribunus— term  defined,  2. 

u. 

Usage— effect  of,  92. 

of  bank,  notice  of  maturity  ot  note,  109. 
Utah— acknowledgments  out  of  territory,  59. 
United  States  Courts— form  of  deposition  in,  262. 


V 

Venue— presumption  of  in  affidavit,  64. 
Vermont— appointment  of  notaries  in,  11. 

records  of  notary  as  evidence,  23. 

notarial  seal,  27. 

statute  provisions  as  to  acknowledgments,  58. 

sight-bills  not  entitled  to  grace,  87. 

term  of  office  of  commissioner  of  deeds,  159. 

form  of  acknowledgment  for,  202. 

form  of  deposition  in,  257. 
Virginia — term  of  office  of  notaries,  12. 

amount  of  bond  of  notary,  13. 

powers  of  notaries,  18. 

records  of  notaries  as  evidence,  23. 

certificate  of.  acknowledgment  made  by  married  women,  45. 

statute  provisions  as  to  acknowledgments,  58. 

term  of  office  of  commissioner  of  deeds,  160. 

form  of  acknowledgment  for,  202. 

form  of  deposition  in,  257. 


380  INDEX. 


w. 

Washington  Territory— acknowledgment  taken  out  of  Territory,  59. 

form  of  acknowledgment  for,  203. 

form  of  deposition  in,  258. 
West  Virginia— term  of  office  of  notary,  12. 

amount  of  bond  of  notary,  13. 

notarial  seal,  27. 

certificate  of  acknowledgment  made  by  married  woman,  45. 

statute  provisions  as  to  acknowledgments,  58. 

term  of  office  of  commissioner  of  deeds,  159. 

fee  paid  by  commissioners,  162. 

seal  of  commissioners  of  deeds,  163. 

form  of  acknowledgment  for,  203. 

form  of  deposition  in,  259. 
Wills — by  whom  attested  under  Roman  law,  4. 

forma  of,  320,  321. 
Wisconsin— qualifications  for  appointment  as  notary,  12. 

amount  of  bond  of  notary,  13. 

term  of  office  of  notary,  14. 

extent  of  jurisdiction  of  notary,  21. 

notarial  seal,  27. 

presumption  as  to  authority  to  take  acknowledgments,  32. 

statute  provisions  as  to  acknowledgment  of  deeds,  58. 

acceptance  to  be  in  writing,  95. 

term  of  office  of  commissioner  of  deeds,  159. 

form  of  acknowledgment  for,  204. 

form  of  deposition  in,  259. 
Wyoming— form  of  deposition  in,  261. 


A     000  668  428     6 


